Dear   
 
This letter is in reference to your reconsideration request dated 14 August 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  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 the entire record, 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 case on its merits.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 12 December 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.   
 
The Board carefully considered your arguments that you deserve to be placed on the disability retirement list.  You assert that you were unfit for continued naval service due to Traumatic Brain Injury (TBI), Migraine headaches, Spinal Disc Condition, and Lumbosacral/Cervical strain at the time of your discharge from the Navy.  You also argue that you would have stayed in the Navy for 20 years had you not been discharged due to a disability condition.  Unfortunately, the Board disagreed with your rationale for relief.  First, you assert that you were injured onboard USS  in July 1995 when you were thrown against a railing.  The Board found contradicting evidence in your medical board report that documents that your back injuries were incurred on 21 October 1995 when you fell down stairs.  The medical board report goes on to state you aggravated your back injury in a February 1996 motor vehicle accident resulting your referral to the Physical Evaluation Board for lumbar syndrome.  The Board found the medical board report credible when compared to your version of events since your military record shows you entered active duty on 3 April 1995 with no indication you were assigned to a ship while on active duty.  Second, based on its finding that the medical board report of 30 April 1996 was credible, they 
found insufficient evidence that any of your service connected disability conditions rated by the VA, other than your lumbar strain, was unfitting.  The fact the medical board only referred your lumbar condition to the PEB was persuasive evidence that your other service connected disability conditions did not create a sufficient occupational impairment to merit a finding of unfitness.  Third, the Board noted that you received a 40% rating from the VA in 1996 for your lumbar condition.  However, they concluded the discrepancy between the PEB and VA in rating your lumbar condition was not erroneous since there was no integrated disability evaluation system in place at that time that required the PEB to adopt a proposed VA rating.  So despite the fact the VA issued a different disability rating, the Board felt there was insufficient evidence to support a finding that the PEB assigned you an erroneous disability rating.  Absent additional evidence the PEB rating was issued in error, the Board concluded there was 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.