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 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 13 August 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:001 of 26 May 2020; a copy of which was previously provided to you for comment. 
 
A review of your record shows that you entered active duty with the Navy in February 1998.  After an initial period of limited duty for right knee pain in 1981, you served without incident until undergoing back surgery in September 1994.  You reinjured your back the next month resulting in a medical board referral to the Physical Evaluation Board (PEB) in April 1995 for Post-Operative Bilateral Intermittent Leg Pains.  On 3 May 1995, the PEB found you unfit for continued naval service for your leg pain and assigned you a 20% rating.  You were discharged with severance pay on 20 July 1995 after accepting the PEB findings.  Post-discharge, medical reports indicate you suffered from a number of disability conditions that required treatment.  The Department of Veterans Affairs rated you for Obstructive Sleep Apnea, Left Ventricular Hypertrophy, Degenerative Disc Disease Lumbosacral Spine, and Hypertension.   
 
The Board carefully considered your arguments that you deserve to be placed on the disability retirement list.  You assert that the PEB failed to consider other unfitting disability conditions when assigning your disability rating.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinion in your case.  
 
In order to find a service member unfit for continued naval service, the member must be unable to perform the duties of their office, grade, rank or rating as a result of a qualifying disability condition.  In your case, the Board considered whether you were unfit as a result of your hypertension, diabetes, or sleep apnea.  In reviewing the medical evidence, it was clear that you suffered from hypertension while on active duty.  You were treated and prescribed medication to control your condition and were seen on 22 June 1995 to refill your hypertension prescription; approximately one month prior to your discharge from the Navy.  However, in examining your last medical visit in the Navy for hypertension, it was documented that your condition was under control with medication.  This was strong evidence to the Board that your hypertension was under control at the time and did not merit a referral to the PEB or a finding of unfitness for continued naval service.  Regarding your diabetes condition, the Board noted that you developed diabetes in 1997 after gaining significant weight post-discharge.  This indicated to the Board that your condition did not exist while on active duty or create a sufficient occupational impairment to merit a referral to the PEB at the time of your discharge.  The Board also considered your sleep apnea and concluded there was insufficient evidence that you suffered an occupational impairment as a result of the condition.  The Board considered the fact you were not rated by the VA for sleep apnea until approximately 10 years after your discharge from the Navy.  Finally, the Board found insufficient evidence that you were improperly rated by the PEB for your back condition.  While the VA rated your back condition at 30%, it wasn’t until 1999 that it issued the rating.  Additionally, the January 1998 letter from your orthopedic surgeon documents that you were not seen by the surgeon until 7 November 1997; a little over two years after your discharge.  The Board concluded it was not unusual for degenerative disc diseases to worsen over time and a 10% increase in a disability rating over a four-year period did not necessarily mean the PEB assigned rating of 20% for your back condition was erroneous.  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.   
 
Sincerely,