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 relevant portions of your naval record and your application, 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. 
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 10 December 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.  In addition, the Board considered the advisory opinions contained in Psychiatric Advisor CORB letter 1910 CORB: 002 of 25 September 2020 and Director CORB letter 1910 CORB: 001 of 15 October 2020 along with your response to the opinions. 
 
A review of your record shows that you entered active duty with the Navy in August 1975.  On 28 February 1978, a medical board diagnosed you with Partial Complex Seizures and referred you to the Physical Evaluation Board (PEB).  The PEB found you unfit for continued naval service and assigned you a 40% disability rating.  As a result, you were transferred to the Temporary Disability Retirement List on 16 May 1978.  On 21 May 1980, a periodic physical examination documented that you were experiencing one seizure episode every three months.  A second periodic examination on 22 July 1981 documented that you experienced one major seizure and weekly visual distortions.  Based on your periodic examinations, the PEB lowered your disability rating to 10% resulting in your discharge from the Navy with severance pay.  On 2 June 2000, the Department of Veterans Affairs increased your disability rating for your seizure disorder to 80%. 
 
The Board carefully considered your arguments that you deserve to be placed on the disability retirement list.  You argue that the PEB erroneously rated you at 10% despite symptoms that merited a higher disability rating.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinions in your case.  Specifically, the Board concluded the preponderance of the evidence does not support your placement on the disability retirement list since your symptoms qualified for a disability rating less than 30%.   
 
As explained in the advisory opinions, in order to qualify for a disability rating of 40% for a Seizure Disorder, a service member would need to experience documented seizures totaling five to eight minor seizures weekly.  Based on your periodic examinations conducted in 1980 and 1981, you experienced a total of three seizures in the last 12 months.  Therefore, based on your medical history, you did not qualify for a 40% disability rating or placement on the disability retirement list in 1982.  Regarding your current 80% rating from the VA for your Seizure Disorder, the Board determined this rating was issued to distant in time from 1982 to be probative on whether you were issued a proper rating by the Navy.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
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 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 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,