DEPARTMENT OF THE NAVY
b
BOARD FOR CORRECTION OF NAVAL RECORDS
2 N A V Y A N N E X
WASHINGTON D C 2 0 3 7 0 - 5 1 0 0
r
JRE
Docket No. 10281-02
14 August 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 14 August 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. The Board also considered the
comments of your counsel.
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 appeared before a medical evaluation
board (MEB) on 30 August 2001, and were given a diagnosis of
severe degenerative disk changes, with chronic back and right
lower extremity pain secondary thereto. The report of the MEB
was referred to the Physical Evaluation Board (PEB) for review
and disposition on 6 September 2001. On 24 September 2001, the
President, PEB advised the Commanding Officer, Naval Medical
Center, Portsmouth, Virginia, that the MEB had been rejected by
the PEB because a PEB physician had determined that "the member
will not overcome the presumption of fitness." It appears that
the MEB w c rejected b e r x ~ z e you were p.-nding mandatory
retirement on 1 October 2001, and it was determined that your
spinal condition did not contribute to the early termination of
your career, and that there was no serious deterioration of your
condition in the months prior to your gpproved retirement date
that would have prevented you from performing duties
commensurate with your grade and experience had you not retired.
You underwent elective spinal surgery on 25 September 2001, and
were retained on active duty until 31 October 2001. You
transferred to the Retired List effective 1 November 2003.
The Board was not persuaded that the elective surgery you
underwent on 25 September 2001 resulted in deterioration of your
condition sufficient to overcome the presumption of fitness. It
concluded that although your service was extended until 31
October 2001 to allow you to recuperate from the surgery, there
was no need for an extension beyond that date, and no basis for
further action by an MEB or the PEB. As such, you had no right
to be retained on active duty beyond your approved retirement
date, as extended.
In view of the foregoing, 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 materi. a1 error or .ini~~st.ice.
Sincerely, -
Executive Dir
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