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

Docket No: 10706-19 
Ref: Signature Date 

Dear

This letter is in reference to your 21 October 2019 reconsideration request.  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 24 February 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. 

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record.
 
You enlisted in the Navy and began a period of active duty on 28 May 1970.  You served honorably until your discharge on 8 February 1972 due to a reduction in authorized strength.  You began a second period of active duty on 9 March 1973.  You were then released from that period of active-duty service on 20 March 1975 and subsequently transferred to the Navy Reserve. 

You request a change to your record to reflect a medical retirement.  You also claim entitlement to Navy Combat-Related Special Compensation based on the presumption that you were exposed to Agent Orange during your military service.  You state that, following your exposure to Agent Orange, you developed severe foot and nerve disorder, which was exacerbated by “not (being) allowed to stay on (your) feet.”  You assert that you developed a severe pes planus deformity, including a susceptibility to nervous breakdowns, and that you suffered the loss of use of both feet since 24 August 1974.  You contend that the Navy made a clear and unmistakable error from 24 August 1974 through 21 October 1974. 

The Board, in its review of your entire record and application, carefully considered your contentions.  The Board noted that you were seen for problems with your feet in October 1974, when you were given a treatment plan.  Additionally, prior to your discharge in March 1975, you were deemed fit for separation.  Your subsequent disability rating of 10% from the Department of Veterans Affairs (VA) in March 1997 was taken into consideration by the Board.  The Board noted, however, that a VA rating is tied to the establishment of service connection and is manifestation-based without a requirement that unfitness for duty be demonstrated. Your record establishes that you successfully completed two periods of active duty, indicating that you were fit for duty. Therefore, the Board concurred with its previous finding and determined that you did not provide sufficient evidence to establish entitlement to a medical retirement based on unfitness for duty.  With regard to your request for monetary compensation due to the contention that you were exposed to Agent Orange, the Board noted that such an award of monetary compensation is outside of the scope of its authority.
 
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,