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 case on its merits.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 8 August 2019.  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 1910 CORB: 002 of 24 June 2019, 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 October 1996 and eventually received a commission in December 2000.  In July 2007, medical reports show you complained of a two-year history of back pain and imaging showed you suffered moderate disc disease in the L3/L4 area.  You were prescribed physical therapy and commenced treatment on 31 July 2007 that continued until January 2008.  In the meantime, you submitted a resignation request on 1 October 2007 and were issued separation orders on 27 December 2007 to be executed in June 2008.  On your last physical therapy report of 30 January 2008, you reported no pain or irritability in your hip or radiculopathy symptoms in your right leg.  In addition, you were able to raise your leg 90 degrees with full range of motion and released without limitations.  A fitness report ending on 31 January 2008 documents you earned a 4.0 trait average with positive performance comments and a “Must Promote” recommendation.  On 25 February 2008, you were medically cleared for separation.  A final fitness report was issued on 29 March 2008 which documented a 4.33 trait average, positive performance comments, and an “Early Promote” recommendation.  You were discharged on 1 June 2008 pursuant to your resignation.  Post-discharge, the Department of Veterans Affairs issued you service connected disability ratings for degenerative joint disease with multiple level lumbar disc herniation and intervertebral disc syndrome (40%), neuralgia left lower extremity (20%), and neuralgia right lower extremity (20%). 
 
The Board carefully considered your arguments that you deserve to be placed on the disability retirement list.  You assert the back injuries you suffered while on active duty made you unfit for continued naval service and that you should have been referred to the Physical Evaluation Board due to the severity of your back condition that was rated by the VA greater than 30%.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinion contained in Director CORB letter 1910 CORB: 002 of 24 June 2019.  Specifically, the Board found that there was insufficient evidence you were unable to perform the duties of your office, grade, rank or rating due to your back condition.  The Board relied primarily on three pieces of evidence in making their findings.  First, they noted in your 30 January 2008 physical therapy notes that you reported improved symptoms from your back condition and an ability to raise your leg 90 degrees with a full range of motion.  In the Board’s opinion, this medical evidence documents that your condition was improving as you neared your separation date in June 2008.  Second, the Board relied on the 25 February 2008 separation physical that medically cleared you for separation.  While the report shows you were still suffering from stiffness, it noted that your condition was still improving.  The Manual of the Medical Department Chapter 15-20 requires separation examinations and evaluations for active duty members and states, “comprehensive evaluations are conducted for the purposes of ensuring that Service members have not developed any medical conditions while in receipt of base pay that might constitute a disability that should be processed by the Physical Evaluation Board and to ensure Servicemembers are physically qualified for recall to additional periods of active duty.  Thus, the standards for being physically qualified to separate are the same as those being qualified to continue active duty Service….”  Based on the stated purpose and standard for separation physicals contained in the Manual of the Medical Department, the Board relied on your separation physical as medical evidence you were qualified to continue on active duty and your back condition did not merit a referral to the Physical Evaluation Board.  Third, the Board relied on your 29 March 2008 fitness report as evidence that you were satisfactorily performing the duties of your office, grade, rank or rating.  As pointed out in the advisory opinion, the inability to perform special duties, such as a flight officer, cannot serve as the sole basis for unfitness.  There must be additional evidence that a member is unable to perform military duties.  In your case, the Board noted that your trait average increased from 31 January 2008 to 29 March 2008 and your promotion recommendation was stronger.  This was strong evidence that you were performing your assigned military duties above fleet averages for your paygrade with little evidence of an occupational impairment except in your ability to perform flight duties.  Absent evidence of occupational impairment other than your inability to perform flight duties, the Board determined your superior performance supported the findings of the separation physical that you were medically qualified to continue on active duty and, therefore, not unfit for continued naval service or qualified for placement on the disability retirement list.  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 case are such that favorable action cannot be taken.  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, 
     
8/29/2019
Executive Director