DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 


Docket No. 8328-18 
 
Signature Date 

Dear 

This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 1552.  After careful and conscientious consideration of the entire record, the 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 24 January 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. 

A review of your record shows that you entered active duty with the Navy in July 1996.  You underwent a partial lumbar discectomy in July 2002 to alleviate back pain.  You continued your career through the end of your enlistment when you were discharged on 13 July 2005 at the completion of your required active service. 

The Board carefully considered your arguments that you should be returned to active duty and referred to the Disability Evaluation System.  You assert that you were pending a medical board that was improperly terminated due to alleged misconduct for which you were absolved.  Unfortunately, the Board disagreed with your rationale for relief. In order to find a servicemember unfit for continued service, it was must be determined that that member is unable to perform the duties of their office, grade, rank or rating due to a qualifying disability condition.  In your case, the Board examined your last two performance evaluations prior to your release from active duty.  In your performance evaluation ending on 15 March 2005, you earned a 4.0 trait average with positive work comments and a “Must Promote” recommendation.  Subsequently, your separation performance evaluation shows you earned a 3.86 trait average with positive work comments along with another “Must Promote” recommendation.  This was persuasive evidence of fitness for continued naval service to the Board since you were performing well above fleet standards up until your release from active duty and earned an unrestricted reentry code.  Therefore, the Board concluded you were medically and professionally qualified to reenlist in the Navy in 2005 and that it would be inappropriate to grant you disability benefits approximately 14 years after your release from active duty when the evidence does not show you were occupationally impaired by a disability at the time of your discharge.  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 at this time. You are entitled to have the Board reconsider its decision upon the submission of new and material evidence.  New evidence is evidence not previously 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, 
2/5/2019