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

Ref: Signature Date 

Docket No.600-19 
          4093-17 

Dear: 

This letter is in reference to your reconsideration request of 28 November 2018.  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 that 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 14 May 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, as well as applicable statutes, regulations, and policies.  Additionally, the Board considered the advisory opinions contained in Psychiatric Advisor CORB letter 1910 CORB: 002 of 26 March 2020 and Director CORB letter 1910 CORB: 001 of 31 March 2020; copies of which were previously provided to you for comment. 

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 issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 

The Board carefully considered your arguments that you deserve a waiver of reenlistment bonus, reinstatement of rank to E-5, promotion to E-6, back pay from your reduction in rate, and a disability discharge.  You assert that you were suffering from a number of disability conditions, including Post-Traumatic Stress Disorder, Traumatic Brain Injury, Tuberculosis, and anxiety, when you were discharged. You attribute you poor performance and reduction in rank to your disability conditions.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinions contained in Psychiatric Advisor CORB letter 1910 CORB: 002 of 26 March 2020 and Director CORB letter 1910 CORB: 001 of 31 March 2020.  Specifically, the Board found there was insufficient evidence that any of your disability conditions prevented you from performing the duties of your office, grade, rank or rating at the time of your discharge.  The Board considered that you were discharged for your inability to meet Navy family care requirements and not due to poor performance or an inability to perform your duties due to an occupational impairment caused by a disability condition.  The fact you were treated for disability conditions after your release from active duty or rated by the Department of Veterans Affairs (VA) did not convince the Board you were unfit for continued naval service at the time of your discharge.  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.  Additionally, the Board found that the preponderance of the evidence does not support a nexus between your disability conditions and your misconduct that formed the basis for your non-judicial punishment on 8 April 2010.  Absent evidence of a nexus, the Board concluded that your non-judicial punishment was supported by the evidence and remains appropriate despite the existence of your disability conditions.  Further, since you did not complete your enlistment and were not discharged for a disability condition, the Board determined your reenlistment bonus was properly recouped.  Finally, based on their finding that your non-judicial punishment remains appropriate, the Board found that the preponderance of the evidence does not support promoting you to E-6 since you were reduced to E-4 approximately 12 months prior to your discharge and not eligible for promotion to E-6.  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 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,