Docket No. 4850-18 
Ref: Signature Date 


This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 1552.  After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

After careful consideration of your application, the Board concluded that your application was not timely filed, and that it would not be in the interest of justice to excuse your failure to submit your application in a timely manner on the issue regarding the correction of your DD Form 2807­1 and DD Form 2808. You asked the Board to waive the statute of limitations and consider your application based on the Manual of the Medical Department requirements for these forms and claim to have discovered the errors in your record in 2018.  The Board determined this was an insufficient reason to waive the statute since they believed it was reasonable for you to have been aware of the potential error with your separation physical at the time you were discharged.  They did not find your statement regarding discovery of the potential error in 2018 credible in light of your Department of Veterans Affairs compensation claims that were filed prior to 2018. Since there is no evidence provided that indicates you were unable to file your application within the three years from when you likely learned of the potential error contained in your record, the Board applied the statute of limitations for this issue alone.  Prior to making this decision, the Board considered whether there was sufficient evidence to determine whether an injustice occurred in your case due to the approximately 15-year gap in time from when you were discharged until the Board considered your application; they concluded the passage of time made it impossible to make a determination since the Navy would have needed to evaluate your medical condition as of 2003.  While the Board agreed with you that there may be an administrative error in the Navy’s failure to complete the forms in question, they felt they could not reasonably determine whether an injustice resulted that failure based on the delay in filing your application.  Accordingly, relief was denied on that issue based on the statute of limitations. 

Regarding the other issues contained in the two applications you filed with this Board, although your applications were not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your case on its merits for the remaining issues.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 1 November 2018.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record and applicable statutes, regulations and policies.  

A review of your record shows that you entered active duty with the Navy in October 1999.  After completing your initial pipeline training as a Disbursing Clerk (DK), you were assigned to . On 15 July 2000, you received an adverse performance evaluation indicating that you experienced difficulty performing your duties and were counseled on numerous occasions.  However, your performance improved shortly afterwards until you were issued non­judicial punishment for insubordination on 26 September 2000. On 10 January 2001, non­judicial punishment was again imposed on you for insubordination and communicating a threat.  Despite these two incidents of non-judicial punishment, you earned a 3.33 trait average and promotable recommendation in your April 2001 performance evaluation and were frocked to DK3. Despite your improvement in performance, upon transferring to , you were again involved in misconduct and poor performance leading to another non-judicial punishment on 15 November 2001. In this incident, you were found to have used disrespectful language toward superiors, violated orders, used provoking words, and communicated a threat.  Based on your misconduct and specific identified deficiencies in your performance as a DK, your frocking was withdrawn and your NEC was removed in February 2002.  You received another adverse performance evaluation in February 2002 that memorialized the basis for your NEC removal.  In June 2002, you transferred to USS  and, once again, committed misconduct that resulted in non-judicial punishment.  On 26 October 2002, you were punished for insubordination and disorderly conduct.  Despite these initial difficulties, it appears your performance improved significantly over the next 12 months.  On 20 October 2003, you received your last performance evaluation in which you earned a 3.17 trait average, promotable recommendation, and positive performance comments.  You were discharged that same day at your end of your required active service obligation and issued a RE­1 reentry code.  Prior to your discharge, on 13 October 2003, you completed a Report of Medical History and Report of Medical Examination that appears to be incomplete. 

The Board carefully considered your arguments that you deserve to be reinstated to DK3 and be issued a “service connection” for several disability conditions.  Unfortunately, the Board disagreed with your rationale for relief.  First, as pointed out above, the Board applied the statute of limitations on the issue of whether your 13 October 2003 Report of Medical History and Report of Medical Examination merited correction.  However, the Board was able to consider the underlying issue of whether military disability benefits were warranted in your case since they were able to analyze your military performance contemporaneous with your discharge.  They considered whether there was sufficient evidence for a finding of unfit for continued naval service due to any disability condition and concluded there was not.  Specifically, the Board concluded that your documented performance on the date of your discharge did not support a finding that you were unable to perform the duties of your office, grade, rank or rating.  As a general Seaman, you earned a 3.17 trait average on the date of your discharge along with a recommendation for promotion and retention.  The Board considered the fact you were able to perform above fleet standards for your paygrade with no evidence of an occupational impairment noted in your record.  This led them to conclude it was more likely than not that you were fit for continued active duty and could have reenlisted for continued service had you chosen to do so.  Second, the Board determined there was no evidence of error regarding your withdrawal of your advancement to DK3 and removal of your NEC.  You made allegations of misconduct by the Navy and allege possible complications regarding medication you were taking at the time of your misconduct that led to your defrocking and NEC removal.  Yet the Board found that you had a long history of misconduct and disregard for authority throughout your four-year enlistment.  In the Board’s opinion, in addition to the lack of evidence to support your assertions, your history of misconduct and poor performance as a DK at your first command supported a finding that took appropriate action in your case.  The Board found justification for removing your frocking to E4 appropriate in light of the serious misconduct for which non-judicial punishment was imposed on 15 November 2001.  The Board agreed with  rationale, based on the misconduct you committed, that you did not exhibit the NEC removal.  The inability to follow financial regulations as a DK, when combined with your unwillingness to follow guidance from your superiors, was ample justification in the Board’s opinion to remove your NEC.  Based on these findings, the Board found insufficient evidence of error or injustice to warrant a change to your record. 

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issue(s) involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken at this time. You are entitled to have the Board reconsider its decision upon the submission of new and material evidence.  New evidence is evidence not previously considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. 

Sincerely, 

11/13/2018