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

Docket No. 9442-19 
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 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.
 
A three-member panel of the Board, sitting in executive session, considered your application on 23 July 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 6 June 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 April 2013 and served as an Aviation Structural Mechanic.  On 22 February 2017, you underwent a separation physical that cleared you for transfer to the Navy Reserve at the end of your obligated active service.  The medical report documents that you suffered from chronic back pain but stated you were asymptomatic at the time.  While pending separation, you underwent a medical procedure to remove a superficial malignant melanoma from your right posterior neck on 24 March 2017.  You were released from active duty on 29 April 2017 at the end of your obligated active service and transferred to the Navy Reserve.  Upon release from active duty, you were rated by the Department of Veterans Affairs (VA) at a combined 60%.  VA medical notes document that continued to suffer from chronic back pain and received epidural steroid injections with some benefits.
 
The Board carefully considered your arguments that you unfit for continued naval service at the time of your release from active duty.  You assert that you were being treated for your chronic back condition and your melanoma still requires regular medical visits to prevent a reoccurrence.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinion in your case.  Specifically, the Board determined the preponderance of the evidence did not support a finding that you were unfit for continued naval service at the time of your release from active duty.  

SECNAVINST 1850.4 series provides the standard to be used in making determinations of physical disability as a basis for retirement or separation.  A service member must be unfit to perform the duties of office, grade, rank or rating because of disease or injury incurred or aggravated while entitled to basic pay. Each case is considered by relating the nature and degree of physical disability of the member to the requirements and duties that member may reasonably be expected to perform in his or her office, grade, rank or rating. In your case, the Board noted that you received a performance evaluation ending on the date of your release from active duty that documented your performance above fleet standards for your paygrade and rating.  You were assigned a trait average of 4.33, recommended for early promotion, and described as a “stellar” performer.  In the Board’s opinion, this was strong evidence that you were performing the duties of your office, grade, rank or rating at the time of your release from active duty despite your chronic back condition and recent melanoma removal.  The Board also considered that you continued to perform well in the Navy Reserve as evidenced by your 15 March 2019 performance evaluation that assigned you a 3.14 trait average, recommended you for promotion, and documented that you were exceeding job performance standards.  The Board concluded this was additional evidence that you continued to be fit for duty after your release from active duty despite your disability conditions.  As a result, they did not find the VA ratings in your case persuasive evidence of unfitness.  Additionally, they 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. Therefore, absent evidence that rebuts your documented performance above fleet standards, 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,