DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-510
0
JRE
Docket No: 54 12-01
17 August 2001
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 26 July 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. In this connection, the Board substantially concurred with the rationale of the
hearing panel of the Physical Evaluation Board which considered your case on 7 August
1990, a copy of which is attached. The fact that you have been awarded Department of
Veterans Affairs (VA) disability benefits is not probative of the existence of error or
injustice. In this regard, the Board noted that the VA awards benefits without regard to the
issue of fitness for military duty at the time a period of active service is terminated. As you
have not demonstrated that you were unfit for duty on 1 May 1986, or that you became unfit
as a proximate result of performing duty in the Naval Reserve, the Board was unable to
recommend any corrective action in your case. 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
Enclosure
SAN DIEGO HEARING PANEL RATIONALE
IN THE CASE OF
This member appeared before the Panel on 7 August 1990
requesting to be found unfit for duty and rated at 30%
disability.
The Record Review Panel found the member Not Physically Qualified
for retention in the United States Naval Reserve on 15 May
1990
because of physical disability.
1. Degenerative spine disease,
2. Degenerative disc disease, 7226
3. Congenital lumbar spinal stenosis,
4. Bilateral chronic ankle instability,
5. Sural nerve laceration, left ankle,
73390
72$O2
71887
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The members of the Hearing Panel,
testimony of the member,
applicable documentary evidence, concluded:
agrees with the Record Review Panel.
after hearing all verbal
reviewing records and all other
The Hearing Panel
has a long history of back pain and bilateral ankle
was found fit for duty in 1981 regarding his back
He has been a reservist since
after an active duty injury.
February 1986 when he left active duty -- and was fit for full
A back reinjury occurred in 1989 (as a
duty at that time.
civilian).
The members of the Panel agree
- Qualified for retention in the
A NOE was denied and the conditions are therefore not
is Not Physically
rves due to the back
impairment that prevents him from performing the duties of his
rank.
considered for benefits.
authorized for members or former members of the armed forces
after discharge or release from active duty because of physical
disability, even though the origin of the disability may be
related to a period of active duty or inactive duty training.
(DEM Paragraph 1009.)
Further, disability benefits are not
No mistake of law occurred.
Enclosure
(1)
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