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

Docket No. 8928-19 
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 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 case on its merits.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 9 January 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.  
 
A review of your record shows that you entered active duty with the Navy in December 1975.  In December of the following year, non-judicial punishment was imposed on you for black-marketing, unauthorized absence, and missing ship’s movement.  Non-judicial punishment was again imposed on you on 21 March 1977 for failure to obey a lawful order.  Four days later, you were again punished with non-judicial punishment for intentionally feigning mental derangement.  As a result of your misconduct, you were notified of administrative separation processing on 25 March 1977 for being a burden to your command resulting in your discharge on 28 March 1977 with a General characterization of service.  You assert that the Department of Veterans Affairs assigned you a 100% combined disability rating in 1983. 

The Board carefully considered your arguments that you deserve to be placed on the disability retirement list based on your VA assigned disability rating.  Unfortunately, the Board disagreed with your rationale for relief.  First, the Board found insufficient evidence to support a finding that you were unable to perform the duties of your office, grade, rank or rating as a result of a qualifying disability condition at the time of your discharge from the Navy.  While the Board noted you were administratively separated from the Navy, they concluded the basis for your separation was due to your history of misconduct vice a disability condition.  Absent evidence that you were unfit for continued naval service in March 1977, the Board determined the preponderance of the evidence did not support placing you on the disability retirement list.  Second, the Board also concluded you were ineligible for disability benefits based on your administrative separation for misconduct.  Disability regulations dictated that misconduct processing superseded disability processing.  So even if there was evidence of unfitness, the Board determined you were properly processed for your misconduct.  Based on these findings, the Board believes that 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.   

Sincerely, 


1/13/2020