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NAVY | BCNR | CY2002 | 06397-02
Original file (06397-02.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
         2 NAVY ANNEX    
         WASHINGTON DC 20370-5100        
                  JRE
                  Docket No. 06397-02
                  28 February 2003

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 February 2003. 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 2 October 2001, the Physical Evaluation Board (PEB) made preliminary findings that you were unfit for duty because of migraine headaches and lumbar spondylosis, rated at 30% and 10%, respectively. You rejected those findings and demanded a formal hearing; however, after consultation with counsel, you withdrew your demand, and accepted the proposed findings. You were released from active duty on 31 March 2002, and transferred to the Temporary Disability Retired List the following day. Although your combined disability rating is 40%, you will be paid at the 50% rate during your tenure on the TDRL, as required by law.
The Board did not accept your contention that you were advised by counsel you would be discharged without entitlement to disability benefits if you did not accept the preliminary findings of the Physical Evaluation Board (PEB). It concluded that you probably misunderstood what your counsel told you. In this regard, it noted that had you persisted in your demand for a hearing, the hearing panel may have found you fit for duty or reduced the combined rating for your disabilities below 30%. In the former case, you would have been returned to duty, and in the latter, discharged with entitlement to disability severance pay. As it does not appear that your headache condition met the criteria for a rating of 50%, or that your spinal condition was ratable above 10%, it appears that the risk associated with demanding a hearing far outweighed any potential benefits. In addition, the Board noted that although the Navy and the Department of Veterans Affairs use the same rating schedule, with some modifications, neither agency’s rating determinations are binding on the other. As the Board was not persuaded that your disabilities were rated improperly, it 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

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