Docket No. 4786-19 
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 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 2 July 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 opinion contained in Director CORB letter 1910 CORB: 002 of 29 April 2020 along with your response to the opinion. 

A review of your record shows that you entered active duty with the Navy in September 2006 and served successfully until the end of your obligated active duty service in February 2018.  Prior to your release from active duty, you were medically cleared for separation on 3 January 2018.  Additionally, you were diagnosed with obstructive sleep apnea and low back pain in the days prior to your discharge from active duty.  Upon your discharge, the Department of Veterans Affairs rated you for a number of service connected disability conditions including Obstructive sleep apnea (50%), Degenerative arthritis (40%), Right lower radiculopathy (10%), Left lower radiculopathy (10%), Temporomandibular Joint Disorder (40%), Dermatitis (10%), Right wrist carpal tunnel syndrome (10%), Allergic rhinitis (10%), Left Knee Patellofemoral pain syndrome (10%), Lateral collateral ligament sprain right ankle (10%), Right tenosynovitis (10%), Tinnitus (10%) and two additional conditions rated at 0%.  In the end, you were assigned a combined disability rating of 100%.  You also entered the Navy Reserve upon your release from active duty but there was no evidence in your record of your performance in your record.  However, you provided evidence that documents your ineligibility to serve based on a medical review that was conducted based on your service connected VA ratings.  Ultimately, you were discharged from the Navy Reserve on 19 February 2020 at the end of your obligated service after you requested to be released based on a defective enlistment.  

The Board carefully considered your arguments that you deserve to be placed on the disability retirement list based on your sleep apnea, sciatic nerve pain, and lower back pain.  You assert that you were unfit for continued naval service at the time of your release from active duty based on your diagnosed disability conditions and your VA ratings.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinion contained in Director CORB letter 1910 CORB: 002 of 29 April 2020.  Specifically, the Board concluded the preponderance of the evidence did not support a finding that you were unable to perform the duties of your office, grade, rank or rating at the time of your release from active duty.  

The Board made several findings in reaching their conclusion that the evidence does not support relief in your case.  First, they determined that your documented performance leading up to your discharge did not support a finding that you were unable to perform your military duties.  Your 15 November 2017 performance evaluation shows that you were performing well above fleet standards for your paygrade and rating.  Additionally, you were recommended for promotion and retention with positive performance comments.  In the Board’s opinion, this was strong evidence that you were performing the duties of your office, grade, rank, and rating despite the existence of your disability conditions.  Second, the Board considered your separation physical from 3 January 2018.  This medical examination noted a number of disability conditions but, ultimately, concluded that none of the disability conditions were disqualifying for continued active duty service.  The Manual of the Medical Department Chapter 15-20 requires separation examinations and evaluations for active duty members and states “comprehensive evaluations are conducted for the purposes of ensuring that Service members have not developed any medical conditions while in receipt of base pay that might constitute a disability that should be processed by the Physical Evaluation Board (PEB) and to ensure 
Servicemembers are physically qualified for recall to additional periods of active duty.  Thus, the standards for being physically qualified to separate are the same as those being qualified to continue active duty Service … .”  Therefore, based on your separation physical, the Board concluded that you were physically qualified to continue active duty as of January 2018.  Third, the Board also considered your RE-R1 reenlistment code issued upon your release from active duty that made you eligible for preferred reenlistment.  This reenlistment code was consistent with the medical determination that you were fit to continue on active duty and supported the Board’s finding that the preponderance of the evidence shows you were not unfit due to your disability conditions.  Fourth, while the Board considered your VA ratings, they did not find them probative on the issue of fitness for active duty.  The Board noted that eligibility for compensation and pension disability ratings by the VA is tied to the establishment of service connection and is manifestation-based without a requirement that unfitness for military duty be demonstrated. Absent corroborating evidence of unfitness while you were on active duty, the Board did not find your VA ratings persuasive.  As explained previously, the Board found substantial evidence of fitness for continued active duty in your record.  Finally, the Board considered your Navy Reserve evidence of not being physically qualified but concluded it was insufficient to overcome the evidence of fitness from the end of your active duty service.  The Board also considered the fact you were never discharged from the Navy Reserve for not being physically qualified. In the end, despite clear evidence you were suffering from disability conditions, the Board felt the evidence supporting a finding of fitness at the time of your release from active duty outweighed the evidence of unfitness. Therefore, while the Board empathizes with your current medical conditions, they felt compensation and treatment for your disability conditions fall outside the scope of the Department of Defense disability system and under the purview of the VA.  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.