Docket No. 9589-19
Ref: Signature Date
 
Dear ,  
 
This letter is in reference to your reconsideration request dated 19 October 2017.  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.  
 
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 30 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.  Additionally, the Board considered the advisory opinion contained in Navy Personnel Command Memorandum 5420 Ser Pers-835/003 of 5 January 2017; an opinion that was previously provided to you as part of your previous application. 
 
The Board carefully considered your arguments that you deserve to be placed on the retirement list and reverted back to enlisted status.  You also assert you were unfit for continued naval service at the time of your release from active duty.  Further, you again raise the arguments that you were erroneously denied enlisted service credit for your time at the Naval Academy and deserve associated adjustments to your service and promotion dates with back pay.  Finally, you request to be granted Combat Related Special Compensation (CRSC).  Unfortunately, the Board disagreed with your rationale for relief.   
 
First, the Board concluded you are not entitled to service credit for enlisted service from 28 June 2002 through 9 February 2005.  Despite the fact you may have been issued a DD Form 214 after your entrance into the Naval Academy, the Board concluded you were statutorily precluded from receiving enlisted service credit while you were a Midshipman.  Title 10, United States Code, Section 971(a) states that the “period of service under an enlistment or period of obligated service while also performing service as a cadet or midshipman or serving as a midshipman in the Navy Reserve may not be counted in computing, for any purpose, the length of service of an officer of an armed force or an officer in the Commissioned Corps of the Public Health Service.”  Based on this statute, the Board concluded you were not entitled to enlisted service credit toward your length of service as a commissioned officer since you were a midshipman during the period you are claiming.   
 
Second, the Board found the preponderance of the evidence did not support placing you on the retirement list.  In reviewing your qualifying years of service, the Board noted you did not possess sufficient years of service to qualify for retirement.  Additionally, the Board found that there was insufficient evidence of unfitness for continued naval service to place you on the disability retirement list.  In order for a service member to qualify for military disability benefits, the member must be unfit for continued naval service due to a qualifying disability condition.  Unfitness is defined as the inability to perform the duties of your office, grade, rank or rating due to a disability condition.  In your case, the Board examined your last fitness reports prior to your release from active duty.  They noted that you received a 4.57 trait average with an early promotion recommendation.  You were described as an “exceptional Naval Officer” with recommendations for assignment as a Department Head or attendance at the Naval War College.  Additionally, you received a Navy and Marine Corps Commendation Medal for superior performance encompassing your last several years of active duty.  In the Board’s opinion, this was strong evidence that you were performing well above fleet standards for your paygrade and fit for continued active duty despite the existence of any disability conditions.  While the Board also noted that you received a 100% disability rating from the Department of Veterans Affairs (VA) upon your release from active duty, they concluded this was not probative evidence of fitness for active duty based on your aforementioned superior performance.  Further, the Board took into consideration 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.   
 
Third, based on the Board’s finding that your active military service is accurately documented in your DD Form 214 and requires no correction, they determined that no adjustments to your service dates, promotion dates, or pay record was required.  Moreover, since you were determined not to qualify for military retirement, you are not eligible for CRSC or reversion back to enlisted status.  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 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.        
           
Sincerely,