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

Docket No: 1227-19
Ref: Signature Date 

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 April 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, and the enclosed 25 February 2020 advisory opinion furnished by the Director, Council of Review Boards (CORB). 

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 service on 29 December 1998.  Your pre-enlistment examination found you physically qualified for enlistment.  Your evaluation for the period of 16 March 2007 to 15 March 2008 notes your creative vision and tenacity, and gives the strongest recommendation for advancement and conversion.  You state that, on 14 May 2008, you were told that pending completion of surgery, you could return to full duty.  You state that you were told by Medical on 11 July 2008 that you could return to full duty without restriction and were worldwide deployable.  On 19 September 2018, you were found not fit for overseas duty due to chronic medical problems.  On 18 November 2008, you were found unfit because of many medical visits and weight.  On 26 December 2008, you reached the end of your enlistment and were discharged by reason on non-retention on active duty.  You received an honorable characterization of service and a reentry (RE) code of RE-3M. 

Following your discharge from the Navy, you received substantial disability compensation from the Department of Veterans Affairs (VA).  In 2016, you were rated 100% disabled by the VA.  The details of your disability were not provided with your current application. 
 
You previously petitioned the Board in 2011.  The Board considered then that you received substantial disability compensation from the VA and noted that you disclosed an extensive medical history prior to your discharge, but that none of the medical conditions was considered disqualifying for separation.  The Board denied your request. 

In your current request, you seek disability retirement pay and take issue with the Board’s previous denial.  You state that you were separated from the Navy based on multiple conflicting opinions about ongoing medical issues.  You assert that you saw a medical provider in May 2008 and were advised you would be fit for duty following your surgery for varicose veins.  Following the appointment, you submitted an ICE complaint about your visit.  You again saw the provider in September 2008, when he found you unfit for sea duty.  You assert that the ICE comment caused him to disapprove your fitness for sea duty.  You provide a photograph of yourself at separation to establish that your weight did not preclude you from moving around the ship.  You also contend that you were discharged without proper protocols and have still not recovered from your medical issues since your separation.
 
As part of the Board’s review, the Director, CORB, reviewed your request and provided an AO in which it determined that the evidence does not support your request.  The AO noted that your current application relies heavily on the VA’s 100% disability rating from 2016, but that details of the VA’s decision were not provided.  Nonetheless, the Director, CORB, noted that the mere presence of a medical condition corresponding to a disability rating entry in the VASRD is insufficient to warrant either a finding of unfitness for continued naval service or a specific disability rating by a Physical Evaluation Board (PEB) in the absence of demonstrated duty-performance impairment of sufficient magnitude as to render a Service member unfit for continued naval service.  The AO was provided to you, and you were given 30 days in which to submit a response.  When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration. 
 
The Board concurred with the AO and determined that you did not demonstrate that you had a qualifying medical condition or disability while you were on active duty that merited referral to the PEB or issuance of a disability discharge or separation. The Board noted that your available in-service medical evaluations did not identify a metabolic cause of your weight issue, which appears to have resulted in your unfitness for sea duty.  The Board determined that a finding of unfitness for sea duty alone due to a weight issue was insufficient to support your request.  Furthermore, the Board concluded that there was not enough evidence in your record to establish that you were improperly or erroneously denied access to a Medical Board or PEB evaluation.  The Board concluded that your record does not merit corrective action.  

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,