Dear ,  
 
This letter is in reference to your reconsideration request.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been denied.  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 relevant portions of your naval record and your application, 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, sitting in executive session, considered your application on 7 August 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.  Additionally, the Board considered the advisory opinions contained in Psychiatric Advisor CORB letter 1910 CORB: 002 of 1 June 2020 and Director CORB letter 1910 CORB: 001 of 12 June 2020; copies of which were previously provided to you for comment. 
 
The Board carefully considered your arguments that your Physical Evaluation Board (PEB) ratings should be changed to reflect your current Department of Veterans Affairs rating for Lumbosacral Strain.  Additionally, the Board considered whether Depression should be added as an unfitting condition.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinions in your case. 
 
First, in order to be found unfit for continued naval service, a service member must be unable to perform the duties of their office, grade, rank or rating as a result of a disability condition.  In your case, the medical evidence shows that your back condition was unfitting but the Board concluded the preponderance of the evidence does not support a similar finding for any other disability condition.  The Board relied on your 2 March 2011 Non-Medical Assessment that documented that your only occupational impairment to performing your duties was your lower back pain and not your mental health condition.  In fact, the assessment states that you continued to work a multi-million dollar account and performed your duties in an exemplary manner despite being physically limited to administrative duties.  Based on your command’s assessment, the Board concluded your only occupational impairment that merited a finding of unfitness was your Osteoporosis condition.   
 
Second, regarding your PEB rating of 10% for your Osteoporosis.  The Board concurred with the advisory opinions that you were properly rated by the PEB at the time of your discharge.  By regulation, the PEB is required to adopt the proposed VA ratings assigned to a case.  In your case, the VA proposed a rating of 10% that was adopted by the PEB.  The fact the VA determined your rating and diagnosis should change many years after your PEB case was adjudicated did not persuade the Board the PEB made an error in assigning you a 10% rating for your unfitting condition.  Absent evidence the VA made an error in assigning you a 10% proposed rating, the Board concluded the PEB assigned rating of 10% remains correct.   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,