Docket No: 0627-20 
Date: Ref Signature 


Dear 
 
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 application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 28 October 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, as well as applicable statutes, regulations, and policies. 
 
You enlisted in the Navy and began a period of active service on 8 November 1983.  Prior to your enlistment, on 8 December 1982, you completed a report of medical history (SF 93).  You did not indicate on your SF 93 a history of back pain.  Following your enlistment, you underwent a medical evaluation, at which time you disclosed your history of pre-service back pain.  On 8 December 1983, you were notified of the initiation of administrative separation proceedings with an entry-level separation (uncharacterized) by reason of defective enlistment and induction due to erroneous enlistment as evidence by chronic back pain, at which point, you waived your right to consult with counsel.  On the same day, a medical evaluation board (MEB) convened and recommended your separation from active service due to your diagnosis of chronic low back pain with left leg sciatica, existing prior to entry (EPTE).  The MEB determined your disability was considered not to be the proximate result of the performance of active duty.  On 13 December 1983, your commanding officer concurred with the findings of the MEB.  On 19 December 1983, you were discharged with an uncharacterized characterization of service by reason of erroneous enlistment. 
 
The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade the characterization of your discharge.  You contend, you were injured in basic training, and after five years of the VA claims process, the VA made a final determination in favor of an honorable discharge with service connected disability.  You contend your current characterization precludes you from qualifying for certain veteran’s benefits.  Decisions reached by the Department of Veterans Affairs to determine if former service members are eligible for certain VA benefits do not affect previous discharge decisions made by the Navy.  The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the Navy when determining a member’s discharge characterization.  Applicable regulations authorize an uncharacterized entry level separation if the processing of an individual’s separation begins within 180 days of the individual’s entry on active service.  There is no provision of law or in Navy regulations that allows for recharacterization of service due solely for the purpose of veteran’s benefits. The Board determined there was insufficient evidence to establish an error or injustice that warrants an upgrade to your characterization of service.   
 
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,