Docket No. 9783-19
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. 
 
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 7 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 opinions contained in Senior Medical Advisor CORB letter 1910 CORB: 002 of 18 May 2020 and Director CORB letter 1910 CORB: 001 of 4 Jun 2020; copies of which were previously provided to you for comment. 
 
A review of your record shows that you entered active duty with the Navy in September 1999.  In January 2000, you were treated for back pain that originated in basic training that eventually was referred to the Physical Evaluation Board (PEB) in December 2000.  The PEB found you unfit for continued naval service in March 2001 for your back condition and rated your disability at 10%.  You were discharged from the Navy pursuant to the PEB findings on 13 July 2001 after you accepted the findings.  On 25 April 2002, the Department of Veterans Affairs (VA) rated your back condition at 20% and rated you for bilateral Chondromalacia Patella and Post-Traumatic Stress Disorder (PTSD).  Your record also shows that you were referred to Family Services after reporting sexual assault in February 2000 and April 2000.  Additionally, you also reported bilateral knee pain in May 2001 prior to your discharge from the Navy. 
 
 
The Board carefully considered your arguments that you were erroneously rated by the PEB based on your VA rating of 20% in 2002.  Further, the Board considered your assertion that you were also unfit at the time of your discharge from the Navy for your bilateral Chondromalacia Patella and PTSD.  Unfortunately, the Board disagreed with your rationale for relief.   
 
First, in order to be found unfit for continued naval service, a service 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 found evidence that you were unfit due to your back condition but concluded insufficient evidence of unfitness exists for your bilateral knee condition or PTSD.  In making their finding, the Board relied on the 19 December 2000 Non-Medical Assessment prepared by your command that indicated your performance duty limitations were due to your back condition.  Additionally, the Board noted that you reported no mental health related symptoms on your 8 January 2001 report of medical examination form.  Finally, the Board considered the 29 May 2001 medical report that addressed your report of bilateral knee pain.  That report showed you had a full range of motion and no swelling of your knees.  You were diagnosed with mild symptoms and released with anti-inflammatory medication.  These medical reports, when considered in conjunction with the Non-Medical Assessment in your case, convinced the Board that any occupational impairments related to your knee and PTSD were insufficient for a finding of unfitness based on mild or non-existent symptoms at the time.   
 
Second, the Board determined that insufficient evidence of error exists to merit a change to the PEB disability rating for your back condition.  Despite the VA’s decision to assign a 20% rating for your back, the Board was unable to find evidence that the PEB decision was erroneous or unjust based on the inconsistent VA rating.  As pointed out by the advisory opinion, the PEB rated your back condition in accordance with your symptoms and applicable regulations at the time.  Absent medical evidence that the PEB erroneously rated your back condition, the Board concluded the preponderance of the evidence does not support a change.  Additionally, the Board noted that changing your disability rating to 20% would not change your military disability benefits based on the Board’s other findings.  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,