DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1265-19 Ref: Signature Date This letter is in reference to your reconsideration request of 7 January 2019. 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. 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 application on its merits. 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. The Board also considered the relevant Advisory Opinion. You enlisted in the Navy and served honorably from 27 May 1986 to 23 March 2001, when you were discharged on the basis of Disability, with severance pay. On 16 January 2001, an informal Physical Evaluation Board (PEB) found you fit for continued active duty for referred conditions of Idopathic Hypersomnolence verses Narcolepsy and Upper Airway Resistance Syndrome, Resolved on Continued Positive Airway Pressure (CPAP). On 14 February 2001, the Informal PEB reconsidered the unfit determination with a disability rating of 0% for Idopathic Hypersomnolence verses Narcolepsy. The second referred condition of Upper Airway Resistance Syndrome was determined to be neither separately unfitting nor contributing to the unfitting condition as it had been unsuccessfully treated using CPAP. On 1 March 2001, you accepted the findings of the PEB; you were discharged on 23 March 2001. Your Certificate of Release or Discharge from Active Dut (DD Form 214) reflects that you were honorably discharged on the basis of Disability – Severance Pay, and received a reentry (RE) code of RE­3P. On 4 March 2002, Veterans Affairs (VA) Rating Decision (VARD) awarded a disability rating of 50% for Obstructive Sleep Apnea with recurrent Narcolepsy and 10% for Otis Medial with Bilateral Eustachian Tube Dysfunction. You again request that you be medically retired rather than medically separated under honorable conditions. You note that you already served 14 years, 9 months, and 27 days of honorable service, and that you had no reason to leave active duty prior to your actual retirement date. You also contend there was inconclusive evidence for your diagnosis of Narcolepsy. As part of the review process, the Council of Review Boards (CORB) considered your request and issued an Advisory Opinion. The Advisory Opinion determined that the evidence does not support your request. The Advisory Opinion based its decision in part on the fact that the informal PEB determined a rating of 0% was appropriate. The Advisory Opinion noted that your available service treatment records do not show than any condition both occurred and significantly impaired your ability to perform your required duties. The Advisory Opinion 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, in its review of your entire record and application, carefully considered your available record and your contentions of error and injustice. The Board concurred with the Advisory Opinion’s findings. TheBoard, like the CORB, relied on the 14 February 2001 informal PEB’s determination that you were unfit to continue on active duty with a disability rating of 0% under VASRD Diagnostic Code 6899-6847 for Idiopathic Hypersomnolence Versus Narcolepsy. The second referred condition, Upper Airway Resistance Syndrome, was determined to be neither separately unfitting nor contributing to the unfitting condition as you had responded to CPAP treatment. The Board noted that at the time of the February 2001 PEB adjudication, VA ratings were not binding on service PEB determinations. The PEB concluded that you condition caused mild industrial impairment, which corresponded to the awarded disability rating of 0%. The Board noted that you accepted these findings without seeking redress at a formal PEB, and were subsequently discharged. The Board found that the information you provided, to include your contentions of inclusive diagnosis of Nacrolepsy did not establish that the information PEB and subsequent discharge in 2001 violated the regulations in effect at the time. The Board also noted that the Advisory Opinion stated that even if referral to the PEB had occurred for additionally petitioned conditions, a finding of unfitness was not likely. The Board agreed with the recommendations of the Advisory Opinion, and again found that you did not establish that you had a qualifying condition or disability at the time of your Naval service that merited a rating which would resulted in a medical retirement rather than a disability discharge with severance pay. You submitted additional information after the Board convened on 7 April 2020. This information was dated 20 May 2020, and receive on 2 June 2020, after the 30-day submission period for a rebuttal to the Advisory Opinion, and after the determination by the Board. The information included a letter from you and a VA correspondence with a rating decision dated 18 July 2019. Based on the Board’s policy on the submission addition information after the decision of the Board, these additional documents were not submitted for reconsideration. 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.