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

Docket No. 10163-19 
Ref: Signature Date 

This letter is in reference to your reconsideration request dated 17 September 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). 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. 

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 23 January 2020.  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.  

The Board carefully considered your arguments that you deserve to be placed on the disability retirement list.  You provided a letter to the Board asserting that your Not-Physically Qualified status qualified you for military disability benefits.  Unfortunately, the Board disagreed with your rationale for relief.  First, the Board found no evidence your disability condition was incurred or aggravated while in a period of Reserve duty greater than 30 days.  Since the evidence did not support a line of duty determination for your immune deficiency disorder, the Board concluded you were not entitled to referral to the Disability Evaluation System for assignment of a disability rating.  Second, even if you were eligible for referral to the Disability Evaluation System for assignment of a disability rating, the Board determined you would not have qualified for placement on the disability retirement list.  They based this finding on your 25 October 2013 Department of Veterans Affairs rating decision that assigned you a 0% rating for your immune deficiency disorder.  Since placement on the disability retirement list requires at least a 30% rating, the Board concluded the preponderance of the evidence does not support a finding that your disability condition would have qualified for disability retirement benefits under Title 10, United States Code.  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 reconsideration petition are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 

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, 


1/27/2020