DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORD
X
2 NAVY ANNE
WASHINGTON DC 20370-510
0
S
JRE
Docket No: 4 175-00
20 July 2001
Dear
This is in reference to your application for correction of your naval record pursuant to the
provisions of title 10 of the United States Code, section 1552.
.
A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 21 June 2001. 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, your naval record and
applicable statutes, regulations and policies.
After careful and conscientious consideration of the entire record, the Board found that the
evidence submitted was insufficient to establish the existence of probable material error or
injustice.
The Board found that on 28 June 1993, the Physical Evaluation Board made preliminary
findings that you were unfit for duty because of mechanical low back pain, which it rated
at.s 0% disabling. You accepted those findings, and were discharged with entitlement to
disability severance pay on 15 November 1993. On 7 October 1994, the Department of
Veterans Affairs (VA) granted you a 40% rating for a lower back condition. The condition
was rated under code 5299-5293, by analogy to intervertebral disc syndrome.
The Board noted that ratings assigned by the military departments are fixed as of the date of
separation or permanent retirement. The fact that the VA rated your condition at 40% from
the day following your separation from the Navy is not probative of error or injustice in your
case, because the rating was based on the results of an examination conducted more than
eight months after you were discharged.
conclusion that your condition was equivalent to severe intervertebral disc syndrome, with
intermittent relief, which is required for the 40% rating under the code selected by the VA.
As you have not demonstrated that you were entitled to a disability rating of 30% or higher,
In addition, the available records do not support the
there is no basis for granting your request. Accordingly, your application has been denied.
The names and votes of the members of the panel will be furnished upon request..
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
and material evidence or other matter not previously 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,
W. DEAN PFEIFFER
Executive Director
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