DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 9848-18 Ref: Signature Date 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 12 December 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 1 November 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 March 1989. After initially injuring your back in 1993, you aggravated your injury in February 1997 and commenced a period of conservative treatment. After continuing to experience back and leg pain associated with a herniated nucleus pulposus, a medical board referred you to the Physical Evaluation Board (PEB) on 12 May 1999. The PEB found you unfit for continued naval service due to L5-Sl Right paracentral herniated nucleus pulposus with persistent radicular symptoms with a 20% disability rating. After you accepted the PEB ratings, you were discharged on 2 September 1999 with severance pay pursuant to the PEB findings. Post-discharge, you assert the Department of Veterans Affairs (VA) rated your back condition at 20% and 10% for a knee disability condition. The Board carefully considered your arguments that you deserve to be placed on the disability retirement list. You assert the VA’s rating of 10% for a knee disability condition substantiates that you were also unfit for continued naval service due to a knee condition at the time of your discharge. 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 1 November 2019. Specifically, the Board found the preponderance of the evidence did not support a finding that you were unfit for continued naval service due to a disability conditions related to your knee. The Board relied on two pieces of evidence in determining that the evidence did not support your request. First, the 12 May 1999 Non-Medical Assessment prepared by your command only referred to your back and sciatica conditions in discussing your occupational impairment. The lack of any reference to difficulties performing your duties as a result of a knee condition led the Board to conclude that any impairment caused by your knee was not significant. Second, the Board noted your 18 May 1999 Comprehensive Physical Examination report documents that no objective pathology was noted in either knee. This was additional persuasive evidence to the Board that your knee condition did not prevent you from performing the duties of your office, grade, rank or rating. Third, the Board did not find the VA rating of your knee probative on the issue of fitness 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 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, 12/26/2019