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

Docket No. 2804-20 
Ref: Signature Date 

Dear , 

This is in reference to your application of 15 March 2020 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 that 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 7 May 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 on 15 September 1998.  You assert that you were erroneously found fit by the Physical Evaluation Board (PEB) in April 2003 before you were discharged at the completion of your obligated active service on 14 November 2003.  You subsequently transferred to the Navy Reserve and served until the completion of your required service on 14 September 2006.  Post-discharge, you assert you were rated by the Department of Veterans Affairs (VA) for a back condition.
 
The Board carefully considered your arguments that your PEB erroneously found you fit for active duty based on your post-discharge VA rating.  Unfortunately, the Board disagreed with your rationale for relief.  In order to find a member unfit for continued naval service, there must be evidence that the member is unable to perform the duties of their office, grade, rank or rating due to a qualifying disability condition.  The Board reviewed your performance record leading up to your discharge and found documented evidence that you were performing well above the fleet average for your paygrade and rate from 2002 until your release from active duty.  Performance evaluations issued on 15 June 2003 and 14 November 2003 show that you earned trait averages above 4.0 and selection as Achiever of the Month (May 2003) and Blue Jacket of the Quarter (2nd Quarter 2003).  In addition, you earned promotion recommendations, positive performance comments, and a Navy and Marine Corps Achievement Medal.  The Board relied upon this evidence to find the preponderance of the evidence supports the PEB finding that you were able to perform the duties of your office, grade, rank or rating.  The Board also noted that you continued your strong performance after transitioning to the Navy Reserve with performance trait averages of 3.71 and 3.86.  Based on this evidence, the Board concluded your back condition did not create a sufficient occupational impairment to merit a finding of unfitness for continued naval service.  Finally, the Board was not persuaded by your VA rating 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.  While the Board empathizes with your current medical condition, they felt compensation and treatment for your disability conditions fall outside the scope of the Department of Defense disability system and under the purview of the VA.  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 the 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,