DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE  1001
ARLINGTON,  VA  22204-2490

Docket No. 6449-18 
Ref: Signature Date

Dear	,

This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied.

Although your application was 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. A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 26 September 2019. 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. In addition, the Board considered the advisory opinions contained in Senior Medical Advisor CORB letter 1910 CORB: 002 of 31 July 2019 and Director CORB letter 1910 CORB: 001 of 5 August 2019, copies of which were previously provided to you for comment.

A review of your record shows that you entered active duty with the Navy in April 1991 and were commissioned in September 1997. You were treated for neck and back pain during your active duty service but completed your required active service in August 2006 and transitioned to the Navy Reserve. Your record shows you served several periods on extended active duty while in the Navy Reserve during which you were treated for knee pain. On 28 June 2010, you were granted line of duty benefits for back pain that was eventually closed on 25 May 2011.  You were retroactively placed on the Retired Reserve effective 1 May 2011 on 15 June 2011. Post- discharge, the Department of Veterans Affairs (VA) rated you for degenerative arthritis of spine, right knee patellar tendonitis, cervical condition, and left knee condition in 2012. In 2017, you were rated for right lower extremity radiculopathy, Post-Traumatic Stress Disorder (PTSD), migraine headaches, and chronic fatigue syndrome.

The Board carefully considered your arguments that you deserve to be placed on the disability retirement list for a number of disability conditions rated by the VA. You argue that you were unfit for continued naval service because the Navy failed to conduct a separation physical and the VA rated you for a number of service connected disabilities less than 12 months after your retirement. Unfortunately, the Board disagreed with your rationale for relief. In making their findings, the Board substantially concurred with the advisory opinions contained in Senior Medical Advisor CORB letter 1910 CORB: 002 of 31 July 2019 and Director CORB letter 1910 CORB: 001 of 5 August 2019. Specifically, the Board found insufficient evidence to support a finding that you were unfit for continued naval service due to any disability condition.  In order to qualify for placement on the disability retirement list, a service member must be unable to perform the duties of their office, grade, rank or rating due to a qualifying disability condition or conditions rated a combined 30% or greater. In your case, despite your assertion that you were unfit due to a lack of a separation physical, the Board noted that you were seen on 25 May 2011 by your primary care manager. That examination documents that your symptoms were well controlled with no remarkable symptoms except paracervical muscle tenderness on palpitation. Based on this examination, your provider closed out your line of duty status with no limitations or referral to a medical board. This medical evidence, when considered in conjunction with minimal treatment you received leading up to your retirement for your other VA rated disability conditions, convinced the Board that you were more likely than not fit for active duty at the time of your placement on the Retired Reserve list. The Board agreed with the advisory opinions that the preponderance of the evidence shows that you likely would have been found fit for active duty had you been referred to the Physical Evaluation Board. Regarding your VA ratings, the Board did not find them sufficiently probative on the issue of fitness to merit the relief you requested when considered with the medical evidence in your military record.  The Board was not persuaded by your VA ratings since eligibility for compensation and pension disability ratings by the VA is tied to the establishment of service connection and is manifestation-based without a requirement that unfitness for military duty be demonstrated. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.

It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or 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,