Docket No 8353-20
 
Dear   
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  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 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 30 September 2021.  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.  In addition, the Board considered the advisory opinion contained in Director CORB letter 5220 CORB: 001 of 9 August 2021; a copy of which was previously provided to you for comment. 
 
A review of your record shows that you entered active duty with the Navy in August 1997.  After completing you active duty obligation, you enlisted in the Navy Reserve.  On 13 July 2014, you reported for annual Reserve training.  During this training period, you were treated by medical for right leg pain that was incurred while playing basketball.  You were diagnosed with Iliotibial Band Friction Syndrome and released without limitations.  The following months after completing your training period, you were treated for chronic lower back pain and eventually diagnosed with degenerative disc disease of the lumbar spine.  This resulted in your placement in a Temporary Not Physically Qualified (drilling) status in January 2015.  Over the following several years, you were treated sporadically for continuing back pain leading to a Not Physically Qualified (NPQ) for retention determination in January 2018.  You subsequently submitted a request for line of duty benefits based on your assertion that your back pain originated in July 2014 while on annual training.  Your request and subsequent appeal were both denied based on your failure to file within the prescribed time limits.  In September 2019, the Department of Veterans Affairs rated you for degenerative disc disease of the lumbar spine at 10% effective 2015 and 20% effective 2018.   
 
The Board carefully considered your arguments that you deserve to be placed on the disability retirement list for your back condition based on your documented complaints of leg pain in July 2014.  You argue that you should have been referred to the Physical Evaluation Board at that time.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinion in your case.  Specifically, the Board found that the preponderance of the evidence did not support a finding that your back condition was incurred during a qualifying period of active duty.  Despite your arguments that your July 2014 complaints of leg pain was when you incurred your back injury that led to your 2018 NPQ determination, the Board agreed with the advisory opinion that the medical evidence does not support your argument.  As pointed out in the advisory opinion, your symptoms, as documented in the medical treatment record from 23 July 2014, supports the Iliotibial Band Friction Syndrome diagnosis issued at that time.  Additionally, treatment records of your back pain document that your back condition was a chronic and gradual condition developed over time.  This was supported by your diagnosis of a degenerative disc disease diagnosis.  Therefore, the Board concluded that the preponderance of the evidence does not support a finding that your back condition was incurred during a period of active duty and you were properly processed for being NPQ for retention in the Navy Reserve vice referred to the Disability Evaluation System for possible placement on the disability retirement list.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
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.   
 
Sincerely, 
10/5/2021
Deputy Director