DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370.5100
JRE
Docket No: 796940
19 June 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 7 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.
In addition, the Board considered the advisory
opinion furnished by the Director, Naval Council of Personnel Boards, dated 27 March
2001, a copy of which is attached.
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 comments contained
in the advisory opinion. 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 ease 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
DEPARTMENT OF THE NAVY
NAVAL COUNCIL OF PERSONNEL BOARDS
WASHINGTON NAVY YARD
KENNON STREET SE RM 309
720
WASHINGTON, DC 203746023
5 4 2 0 IN
Ser:
01-1
27 Mar 0
REI
REPLI
2
1
TR
TO
From:
To:
Subj:
Ref:
Director,
Executive Director,
Naval Council of Personnel Boards
Board of Correction for Naval Records
REQUES
FORMER
(a) Your
(b) SECNAVINST
1850.4D
ltr JRE:jdh Docket No: 7969-00 of 15
WIE
:.,%
/
Dee 00
The Petitioner was placed on the TDRL at 60% for HIV
This letter responds to reference (a) which requested comments and
1.
a recommendation regarding Petitioner's request for correction of his
records.
infection in December 1997.
the Physical Evaluation Board (PEB) determined that the condition was
ratable at 30%.
a higher disability rating be granted.
The Petitioner requests the reduction be reviewed and
On 21 January 2000, after reevaluation,
The Petitioner's case history, contained in reference (a), was
2.
thoroughly reviewed in accordance with reference
(b) and is returned.
a.
The following comments and recommendations are provided:
- 9 September 1997,
Petitioner was medically evaluated.
He had
been HIV positive since July of 1993:
no progressive immunologic deterioration was found.
infections,
symptoms were noted.
weight loss,
fevers,
Other than a falling CD4 count,
No opportunistic
diarrhea or other constitutional
- On
21 October 1997,
the PEB found the member to be unfit for
duty and recommended a disability rating of 60%.
- 3 September 1999,
the member had his TDRL evaluation.
Petitioner reported feeling well,
signs or symptoms of progressive immune deficiency.
developed and well nourished.
tolerating medications and had no
He was well
The
- 27 January 2000,
the PEB reevaluated the Petitioner's case and
reduced his disability rating to 30%.
b.
There are basically two BCNR questions:
(1) First,
was the initial rating of 60% correct? No, it is
estimated that 95% of individuals with HIV infection show a positive
serology for Cytomegalovirus (CMV) infection.
result of a CMV infection occurring early in life that has entered a
latent phase.
infection for rating purposes in patients with severely weakened immune
systems (generally a CD4 level of less than 200).
does not appear to have occurred with the Petitioner.
It only becomes active again as an opportunistic
This is probably the
Fortunately, this
(2) Second, does the 60% disability rating require an
opportunistic infection exist at the time the rating is assigned, or
Subj:
NDATIONS
IN THE CASE OF
merely a history of such infection?
guidance such as to suggest its intent was that individuals would
remain ratable at the 60% or higher level under VASRD Code 6351 even if
their opportunistic infection has responded to treatment.
an opportunistic infection would suffice for rating requirements.
The VA has recently clarified its
A history of
In summary,
He does not appear to have
the evidence in the record shows the Petitioner was
3.
improperly given a 60% disability rating.
had an opportunistic infection or history thereof related to his HIV
immune deficiency.
Accordingly,
recommended.
modification to the Petitioner's record is not
The disability rating of 30% is appropriate.
If the
4 .
Lieutenant
at
(202)685-6399.
ions,
JAGC, U.S. Naval Reserve.
my point of contact for this case is
He is available
_.
Director
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