DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 9332-19 Ref: Signature Date 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 2 January 2020. 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 June 1996. In 2001, your aircraft collided with a aircraft resulting in a forced landing and detention by the government. After your release, you were awarded for your actions in the 2001 incident and returned to your assigned duties. You transferred to Training Squadron 10 in 2002 and served until January 2004 when you were transferred to the Secretary of the Navy, Council of Review Boards (CORB). While at CORB, you were assigned to the Naval Discharge Review Board as a Recorder until your release from active duty on 1 May 2005. Post-discharge, the Department of Veterans Affairs (VA) rated you for a number of service connected disability conditions including Post-Traumatic Stress Disorder (PTSD). In 2006, you won the nomination for the State Treasurer and, eventually, won the general election resulting in your election as state treasurer. You were also selected for the Program in public leadership and elected as Vice-President of the National Association of Unclaimed Property Administrators. The Board carefully considered your arguments that you deserve to be placed on the disability retirement list effective the date of your separation from active duty. You assert that you were unfit for continued naval service substantiated by the service connected disability ratings assigned by the VA. Unfortunately, the Board disagreed with your rationale for relief. In order to be found unfit for continued naval service, a service member must be unable to perform the duties of their office, grade, rank or rating due to a qualifying disability condition. The Board considered several factors in determined the preponderance of the evidence did not support such a finding. First, the Board examined your performance leading up to your release from active duty in 2005. Despite evidence you were unable to perform the physical fitness test due to medical reasons, the Board found ample evidence you were able to perform the duties of your office, grade, rate or rank. Your 26 January 2004 fitness report showed you were performing duties as a flight training officer and earned performance marks “Above Standards” or “Greatly Exceeds Standards” in all categories. Similarly, upon your transfer to CORB, you earned “Meets Standards” marks in all rated categories. In addition, you were recommended for promotion and future assignment as an Executive Officer or Commanding Officer. These active duty performance factors led the Board to conclude the preponderance of the evidence did not support a finding that your VA rated disability conditions created a sufficient occupational impairment to warrant your referral to the disability evaluation system or a finding of unfitness for continued naval service. Second, the Board examined your post-active duty employment activities to possess context on the seriousness of your VA rated disability conditions. They found that your ability to effectively run and be elected as State Treasurer in 2006 consistent with your military performance prior to your release from active duty. In their opinion, this was strong evidence that supports their finding that you were fit for active duty in May 2005 and well beyond that date based on your civilian employment and accomplishments. So while you may have been assigned a combined 80% rating from the VA upon your release from active duty, the Board did not find this evidence persuasive based on objective evidence of fitness for duty. 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. In other words, the mere presence of a diagnosis or VA disability rating is not sufficient for a finding of unfitness. The preponderance of the evidence must establish that the medical disease or condition underlying the diagnosis actually interferes significantly with the member’s ability to carry out the duties of his or her office, grade, rank or rating. For the reasons explained above, the Board found the preponderance of the evidence did not support a finding. Accordingly, 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. 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, 1/7/2020