Dear ,  
 
This letter is in reference to your reconsideration request dated 29 October 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 30 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 a change to your narrative reason for separation from the Navy to disability.  You assert that your suffered a traumatic brain injury (TBI) while on active duty in the Navy that also injured your pituitary and thyroid glands and your spinal cord.  You also allege that you were unfit for continued naval service due to hyperthyroidism and psychosis at the time of your discharge from the Navy.  You rely on your 1980 performance evaluation as evidence that you were unable to perform your military duties due to your disability conditions.  The Board considered the new evidence you submitted regarding the U.S. Court of Appeals for Veterans Claims decision to remand your Department of Veterans Affairs (VA) claim for readjudication after determining you suffered from service connected TBI.  Unfortunately, the Board disagreed with your rationale for relief.  The Board determined the preponderance of the evidence did not support a finding that you were unfit for continued naval service for any disability condition at the time of your discharge from the Navy.   
First, while the Board acknowledged you performed poorly leading up to your discharge from the Navy, they could not establish a nexus between your poor performance and any medical condition.  The performance evaluation you submitted documents that your poor performance was due to a multitude of factors including, but not limited to, lack of effort in performing your duties, an inability to follow instructions, attempts to circumvent your chain of command’s direction, lacking knowledge to perform your duties, and the need for constant supervision.  The performance evaluation also lists your inability to communicate effectively as another basis for your non-retention recommendation.  The Board felt none of these performance factors were inherently related to your TBI or any other disability condition.  Without medical evidence that establishes a nexus between your poor performance and your service connected disability conditions, the Board determined there was insufficient evidence that you were unfit for continued naval service based on your poor performance and the mere existence of disability conditions.  Second, and more importantly, the Board concluded your subsequent enlistment in the U.S. Air Force in April 1984 was strong evidence of fitness for active duty at the time of your discharge from the Navy in 1980.  By meeting medical induction standards for enlistment several years after your discharge from the Navy, the Board concluded you were more likely than not fit for active duty in October 1980 despite the existence of any disability conditions.  Absent evidence that you were enlisted in error by the U.S. Air Force in 1984 due to a disqualifying disability condition, the Board found insufficient evidence of error or injustice to warrant a change to your record.  While the Board empathizes with your current medical condition, they felt compensation and treatment for your disability conditions fall outside the scope of the Department of Defense disability system and under the purview of the VA.  The U.S. Court of Appeals for Veterans Claims decision in your case was determined not to be probative on the issue of fitness for duty in 1980 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.   
 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issue(s) involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of 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.