Docket No. 3630-20 
Ref: Signature Date 


This letter is in reference to your reconsideration request.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been denied.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of theArmy, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.     

A three-member panel of the Board, sitting in executive session, considered your application on 18 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. 

The Board carefully considered your arguments that you should be placed on the disability retirement list in order for you to collect Combat Related Special Compensation (CRSC).  You point out that your Department of Veterans Affairs compensation was offset by your severance pay.  Unfortunately, the Board disagreed with your rationale for relief.  In order to place a service member on the disability retirement list, the member must be found unfit for continued naval service by the Physical Evaluation Board (PEB) and assigned a combined rating of 30% or greater.  In your case, the PEB found you unfit for your lumbar syndrome in June 1996 but assigned you a 10% rating resulting in your discharge from the Navy with severance pay.  Despite your post-discharge, VA rating of 40% for your lumbar condition, the Board agreed with the previous decision that insufficient evidence exists to overturn the PEB decision.  Absent evidence that the PEB assigned rating was erroneous, the Board determined a change to your rating was not merited. The Board also did not find your arguments regarding CRSC or the offset of your VA compensation persuasive since those requirements are independent of the statutory requirement for a PEB assigned 30% rating to qualify for placement on the disability retirement list and are not unique to your case.  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 reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 

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.