Dear ,  
 
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 the Army, 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 17 December 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.  
 
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 issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record.  
 
The Board carefully considered your arguments that you deserve to be placed on the disability retirement list.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board again relied on the evidence of your fitness for duty in determining the preponderance of the evidence does not support relief.  Specifically, your superior performance leading up to your discharge from the Navy showed that you were performing the duties of your office, grade, rank or rating despite the existence of any disability conditions.  The fact you were not performing the duties of your rate did not convince the Board since inability to perform of any duties of a particular paygrade is required for a finding of unfitness.  Your performance evaluation ending on 15 March 2003 shows you were able to perform the duties of your paygrade, albeit different from your normal duties, well above fleet standards.  Additionally, the Board was not convince of your argument that you were denied reenlistment for your disability conditions based on the preferred reenlistment code assigned to you after you were found fit for active duty by the Physical Evaluation Board.  Finally, the Board was not persuaded by your post-discharge Department of Veterans Affairs 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. 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 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.  
      
Sincerely,