Docket No. 3217-20 
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 11 June 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 July 1977 and served without incident until you required treatment for your back pain symptoms in 1992.  Subsequent to being placed on limited duty, you underwent two surgical procedures in 1993 and 1994 before a medical board referred you to the Physical Evaluation Board (PEB).  On 25 October 1994, the PEB found you unfit for continued naval service due to Left L5 Radiculopathy and assigned you a 40% disability rating.  You were transferred to the Temporary Disability Retirement List (TDRL) on 7 April 1995.  You underwent two TDRL periodic examinations in 1997 and 1998 which documented you continued to experience left leg symptoms.  However, those reports also noted that you were employed at a hospital performing maintenance work.  On 9 October 1998, the PEB found you unfit for continued naval service but lowered your disability rating to 20%.  After initially requesting a formal PEB hearing, you accepted the PEB findings and were discharged from the Navy on 16 April 1999 with severance pay.  Post-discharge, you assert that you continued to experience symptoms that required six surgeries. 

The Board carefully considered your arguments that you were erroneously rated by the PEB at 20%.  You assert that your continued symptoms and need for additional surgeries since 1998 substantiate your argument.  Unfortunately, the Board disagreed with your rationale for relief.  

The Board relied on your TDRL periodic examinations from 1997 and 1998 to conclude that the preponderance of the evidence does not support a finding that the PEB assigned you an erroneous rating in 1998.  Records show that you were employed as a maintenance worker at a hospital and did not miss any work due to your leg condition.  In the Board’s opinion, this was evidence that your impairment was minimal despite your symptoms of leg numbness and mild to moderate back pain.  Regarding your need for additional surgeries after your discharge, the Board did not find this evidence persuasive since it is not unusual for disability conditions to worsen over time.  Absent evidence you required surgery contemporaneously with your discharge, the Board felt this was insufficient evidence to support relief.  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.  

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.  

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