DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 1537-16 JAN 03 2017 Dear This is in reference to your application for correction ofyour naval record pursuant to the provisions of 10 USC 1552. 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 ofthe Board for Correction ofNaval Records, sitting in executive session, considered your application on 20 October 20 l 6Q 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, your naval record and applicable statutes, regulations and policies. A review ofyour record shows that you entered active duty with the Navy in November 1997. On 3 May 2005, you were found fit forcontinued naval service by the Physical Evaluation Board (PEB) despite the existence ofa seizure disorder that was caused by exercised induced migraines. On 20 January 2006, you failed your overseas screening due to your condition and no longer met retention standards, however, you were approved to finish your enlistment. You were medically cleared for separation on 14 February 2006 and discharged on 9 September 2006 with severance pay. The Board carefully considered your arguments that you deserve a disability retirement based on your disability conditions that existed while you were on active duty. You assert that is was an injustice to be separated for a condition after being found fit for continued naval service by the PEB. Unfortunately, the Board disagreed with your rationale for relief. First, the Board concluded that you were not eligible for a disability discharge or retirement based on the finding ofthe PEB that you were fit for continued naval service, This finding was supported by your last performance evaluation .that showed you were fully capable ofperforming at a high level despite the existence ofyour migraine and seizure conditions. SECNAVINST 1850.4 provides the standard to be used in making determinations of physical disability as a basis for retirement or separation. A service member must be unfit to perform the duties ofoffice, grade, rank or rating because ofdisease or injury incurred or aggravatcrd while entitled to basic pay. Each case is considered by relating the nature and degree of physical disability ofthe member to the requirements and duties that member may reasonably be expected to perform in his or her office, grade, rank or rating. So the mere presence of a medical condition or specific correspondence of any manifestations thereof to an entry indicating a disability rating contained in the Department ofVeterans Affairs Schedule for Rating Disabilities is insufficient to warrant either a finding of unfitness for continued naval service or a specific disability rating by the PEB in the absence of demonstrated duty performance impairment of sufficient magnitude as to render a Service member unfit for continued naval service. In your case, the Board found no evidence to support a finding ofunfitness for continued naval service since all evidence showed you were performing above average up until you were separated. Second, the Board did not find an injustice in your case to support changing the narrative reason for your discharge. The fact you were not worldwide deployable due to your condition did not rise to the level of an injustice in the Board's opinion. Retention standards are not the same as disability evaluation system standards for fitness for continued naval service and serve a different policy purpose. The Board felt that your case was no different from other servicemembers' cases that are discharged for failing to meet retention standards despite being able to physically perform their duties. Reasonable policy reasons, such as the Navy's inability to treat your condition in remote locations, exist in cases such as yours. Therefore, the Board concluded that you were properly separated in accordance with applicable regulations. Accordingly, the Board was unable to find an error or injustice warranting a correction to your record and denied your application. The names and votes ofthe members ofthe panel will be furnished upon request. In regard to your request for a personal appearance, be advised that the Board regulations state personal appearances before the Board are not granted as a right, but only when the Board determines that such an appearance will serve some useful purpose. In your case, the Board determined that a personal appearance was not necessary and considered your case based on the evidence ofthe 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 ofnew evidence within one year from the date ofthe Board's decision. New evidence is evidence not previously considered by the Board prior to making its decision in.this case. In this regard, it is important to keep in mind that a presumption ofregularity 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, Executive Director