DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No: 8848-02
25 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 you were released from active duty 1 May 1959 and
transferred to the Temporary Disability Retired List (TDRL) with. a 30%
disability rating for labyrinthitis. As you were not found to have true
diabetes at that time, you were not assigned a rating for that condition.
On 23 September 1959, the Veterans Administration (VA) awarded you a 10%
rating for mild diabetes, and 0% for residuals of a fractured finger. It
declined to make a determination concerning your request for service
connection for labyrinthitis because the rating examination did not
contain any objective findings referable to that condition, and you failed
to report for reexamination on three occasions. Although your disability
evaluation proceedings cannot be located, entries in your service record
indicate that you were ordered to appear for three periodic physical
examinations. You were advised by correspondence dated 3 June 1963 that a
final determination of your status would be made after you appeared for
your final periodic examination during September 1963, and that you would
be permanently retired, found fit for duty, or removed from the TDRL, as
warranted by the examination findings. On or about 2 December 1963, the
Physical Evaluation Board determined that you should be permanently
retired by reason of physical disability because of
labyrinthitis, rated at 20%. You were advised in correspondence from the
Chief of Naval Personnel, dated 4 December 1963, that you would be
permanently retired by reason of physical disability effective 1 January
1964, with a rating of 20%. Subsequently, you were issued a certificate of
retirement. On 4 November 1997, the VA confirmed the 10% rating for
diabetes, and denied your request for service connection for labyrinthitis.
The rating decision indicates that there it had no evidence of chronic
labyrinthitis in the years since you filed your original claim, and that no
evidence of middle ear disease was found during the VA examination you
underwent on 22 July 1997.
The Board noted that you were not entitled to an updated DD Form 214
reflecting your permanent retirement on 1 January 1964, because that form
is issued only upon a service member’s release from active duty, and that
transfer from the TDRL to permanent retirement is not a release from active
duty. In addition, it noted that you qualified for permanent disability
retirement, even though your disability rating was below 30%, because you
had completed more than twenty years of active duty service. As noted
above, and notwithstanding your contention to the contrary, you were
advised of your permanent retirement, and issued a certificate of
retirement. The Board rejected your contention to the effect that you did
not undergo medical reevaluation at any time while your were on the TDRL,
as your record indicates that your condition was reevaluated on at least
three separate occasions during that time, and that you were permanently
retired because of the effects of labyrinthitis. In the absence of evidence
which demonstrates that you were entitled to a final disability rating
above 20%, the Board was unable to recommend any corrective action in your
case. Accordingly, your application has been denied.
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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