Docket No. 2530-20
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 relevant portions of your naval record and your application, 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, sitting in executive session, considered your application on 16 April 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 service in the Navy Reserve in September 1998.  You injured your lower back in a motor vehicle accident in 2000 and underwent physical therapy.  In October 2003, you aggravated your back condition in a Humvee rollover incident and were treated with medication.  You subsequently transitioned to inactive duty on 14 February 2004 at the end of your obligated active-duty service. In the summer of 2005, you aggravated your back condition while swimming, which resulted in your placement in a Temporary Not Physically Qualified status.  After continuing to experience lower back pain symptoms, you underwent surgery on 4 May 2006.  You were discharged from the Navy Reserve on 28 May 2006 at the end of your obligated service. 

The Board carefully considered your request to change your narrative reason for separation from active duty to disability.  You argue that you were unfit for continued naval service at the time of your discharge due to your back condition, a condition that later required surgery to treat.  Unfortunately, the Board disagreed with your rationale for relief.  In order for a Service member to be unfit for continued naval service, they must be unable to perform the duties of their office, grade, rank, or rating as a result of a disability condition.  In your case, the Board noted that you aggravated your back condition in October 2003 but could find no evidence that this impacted your ability to perform your duties at the time of your discharge.  The Board examined your performance evaluation ending on 13 February 2004 and noted that you were performing well above fleet standards for your paygrade and rating.  You also received a promotion recommendation, a retention recommendation, and positive performance comments.  In the Board’s opinion, when considered in conjunction with your assignment of an unrestricted reentry code on your DD Form 214, this was strong evidence of fitness for continued active duty at the time of your release from active duty.  Additionally, the Board considered the fact you did not reaggravate your back condition until July 2005, over 15 months after your release from active duty.  This was additional evidence that you were, more likely than not, fit for active duty at the time of your release from active duty and for some time afterwards.  Finally, the Board found no evidence in your record to establish that the 2005 reaggravation of your back condition was incurred during a period of active duty greater than 30 days.  Therefore, the Board found no basis for the issuance of a disability discharge in your case.  While the Board empathizes with your current medical condition, it determined that compensation and treatment for your disability conditions fall outside the scope of the Department of Defense disability system and are, instead, under the purview of the Department of Veterans Affairs.  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.  

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