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

Docket No. 11418-19 
Ref: Signature Date 

Dear

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.
 
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 13 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.
  
A review of your record shows you entered active duty with the Navy in February 2016.  After suffering a toe fracture in 2017, you were placed on limited duty and treated, but continued to suffer pain symptoms associated with your fracture.  As a result, a medical board diagnosed you with Right Tibial Sesamoiditis Secondary to Likely Bipartite Tibial Sesamoid, Stress Reactive Changes to First Metatarsal and Second Metatarsal, Mild First Metatarsophalangeal Joint Osteoarthritic Changes and referred you to the Physical Evaluation Board (PEB).  The PEB found you unfit for continued naval service for Injury of Right Great Toe leading to Osteoarthritis and referred you to the Department of Veterans Affairs (VA) for a disability rating.  The VA assigned you a proposed rating of 20% that was adopted by the PEB on 17 July 2018.  You accepted the PEB findings on 24 July 2018 resulting in your discharge from the Navy on 29 October 2018 with severance pay.  On 31 October 2019, your medical provider wrote a letter stating that you were medically cleared to return to military duties.
 
The Board carefully considered your arguments that the PEB erroneously found you unfit for continued naval service based on your post-discharge medical clearance.  Unfortunately, the Board disagreed with your rationale for relief.  In reviewing your PEB record, the Board determined the preponderance of the evidence supports the PEB finding that you were unfit as a result of your right big toe condition.  The medical board report states that you were unable to successfully perform your military duties due to an inability to lift, perform physical exercise, or any duties requiring prolonged standing, walking, or physical training.  In addition, the report goes on to state that you continue to have pain despite utilizing a cam walker and being non-weight bearing.  In the Board’s opinion, this was sufficient evidence to support a finding that you were unable to perform the duties of your office, grade, rank or rating due to your right toe disability condition.  While your condition may have improved since your discharge from the Navy, the PEB is tasked to establish your fitness or unfitness at the time of your release from active duty.  The medical record clearly establishes you were suffering from a substantial occupational impairment at the time of the PEB findings in your case.  Further, the fact you accepted the findings of the PEB led the Board to believe you agreed with the finding that you were unfit for continued naval service at the time.  So while the Board empathizes with your difficulties in reenlisting in the military, they found no error with the PEB findings in your case. 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,