Docket No: 7186-19 Ref: Signature Date Dear : 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. 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 for Correction of Naval Records, sitting in executive session, considered your application on 18 November 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 service on 13 May 1986. On 9 July 1999, you were evaluated by after falling; your chief complaint was persistent and increasing neck pain and bilateral shoulder pain. You were recommended for a period of four months of limited duty, during which time you were not to engage in any physical readiness training, running, heavy lifting, prolonged walking, standing, crawling, or entering any area where your unsteady gait may pose a danger to yourself or others. On 8 February 2001, you were again evaluated by medical and diagnosed with post anterior cervical decompression and fusion, and mechanical low back pain with associated L4/L5 small central hernia. You were referred to a Physical Evaluation Board (PEB) on the same day. On 26 August 2002, you received nonjudicial punishment (NJP) for false official statement and wrongful use of a controlled substance. You received an evaluation for the period of 16 November 2001 to 26 August 2002; the evaluation was submitted upon your reduction in rank from MS1 to MS2. The comments section of the evaluation noted that you had been a top Sailor in the Supply Department but your attitude and performance deteriorated markedly to a level not commensurate of your paygrade or expectations of your chain of command. The evaluation further stated that your poor judgment ended an otherwise successful Naval career. You were discharged from the Navy on 4 September 2002, on the basis of completion of required active service and received an honorable characterization of service and a reentry (RE) code of RE-4. On 22 March 2013, Veterans Affairs (VA) awarded you a combined service connected disability rating of 90%, updating your previously awarded rating. You request a medical retirement from the Navy, and note that you have 16 years of active service and a 90% service connected disability rating. You assert that you are thus eligible for medical retirement since you have more than eight years of active service and your disability rating is above 50% The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including your honorable discharge, your 16 years of service, and your referral to a PEB while you were on active duty. The Board noted, however, that SECNAVINST 1850.4 series states processing for punitive discharge and processing for administrative discharge for misconduct take precedence over processing for disability. Although you had been referred to a PEB in February 2001, you committed the misconduct of a false official statement and wrongful use of a controlled substance, as evidence by your 26 August 2002 NJP. Your guilty finding for wrongful use merited mandatory administrative separation proceedings on the basis of misconduct. Given the expiration of your period of active duty service on 4 September 2002, it appears as if your command elected to forego pursuing administrative processing on the basis of misconduct, which could have resulted in an other than honorable characterization of service, and instead allowed you to reach the expiration of your service obligation and receive an honorable discharge. The Board found that you did not receive a qualifying disability rating while in the Navy and that you were eligible for mandatory processing due to the misconduct of wrongful use. Therefore, despite your 16 years of active duty, the Board found you were not entitled to a medical retirement. The Board also noted that the 90% disability evaluation from the VA is not determinative on the issue of whether you warrant a military medical retirement. The Board concluded that even in consideration of the VA’s rating and the service-connected condition that resulted in a referral to the PEB, that given your misconduct as reflected in your NJP and your final evaluation, that your current discharge does not merit an upgrade to a medical retirement. 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.