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

Docket No: 4076-19        
Ref: Signature Date 

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 (Board), sitting in executive session, considered your application on 23 September 2019. 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.
 
You enlisted in the Navy and began a period of active duty on 21 December 1988.  Your record indicates that you were discharged in June 1995, due a physical disability with an entitlement to severance pay.  Following your discharge, you were evaluated by Veterans Affairs (VA) and assigned a disability rating in excess of that the 10% rating that you received at the time of your discharge.  A 21 October 2009 determination by the VA notes a 60% rating for degenerative disc disease of the lumbar spine from 14 Jul 97, a .60% rating for right above the knee amputation associated with the degenerative disease of the lumbar spine on 3 Jul 01, a 60% rating due to fecal incontinence associated with degenerative disc disease, a 30% rating from 1997, a 60% rating from 2001 due Neurogenic bladder with history of postoperative urethral and ureteral structure associated with degenerative disc disease of the lumbar spine, and 30% from 1997 due to Temporomandibular joint dysfunction. 

In your petition to the Board you request change to your disability rating from 10% to 60% in light of the VA’s evaluation and rating of 60%.  You assert that you received an evaluation of 60% from the VA for degenerative disc disease, which is the “exact injury that (you) sustained and were discharged for.”  You would like to have TRICARE and education benefits that your dependents deserve.  

The Board took into consideration your request for an increase in the 10% disability rating that you received prior to your discharge from active duty in light of the VA’s post-discharge rating of 60%.  The Board noted that the VA’s rating was assigned for qualifying conditions as early as 1997; you were discharged from the Navy in June 1995.  The Board noted that the VA’s ratings appear to have been made well after your release from active duty.  Furthermore, the Board considered that a post-discharge rating by the VA does not mandate or predicate a change in in-service disability ratings.  The Board found that you did not provide sufficient evidence to establish that the 10% rating prior to your 20 June 1995 discharge was either erroneous or unjust.  Accordingly, the Board determined that your current rating as assigned in conjunction with your discharge from active duty does not merit correction.    

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, 


12/2/2019