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NAVY | BCNR | CY2004 | 01794-04
Original file (01794-04.rtf) Auto-classification: Denied
                                    DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                  2 NAVY ANNEX    
                                             WASHINGTON DC 20370-5100


                                                                                                   JRE
                                                                                                   Docket No. 01794-04
          13 August 2004


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 29 July 2004. 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, regulation and policies
A three-member and conscientious consideration o 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 and transferred to the Temporary Disability Retired List (TDRL) on 15 August 1994, because of the residuals of a knee injury. You underwent a periodic physical examination on 12 June 1997. You disclosed that you were working as a member of a construction crew at that time. The examiner noted that you had full range of motion in the knee, with no documented tenderness. You were observed to have a normal gait, and the results of orthopedic testing and x-ray examination were within normal limits. On 15 July 1997, the Physical Evaluation Board (PEB) made a preliminary finding that you were fit for duty. You were notified of that finding on 20 August 1997. On 2 October 1997,
 the President, PEE, found you fit for duty, and stated that you were entitled to be reenlisted, if you consented. As you apparently declined to reenlist, you were discharged from the Marine Corps.
The Board concluded that your history of reconstructive knee surgery performed on or about 20 August 2002 and 18 November 2003 does not demonstrate that you were unfit for duty five years earlier. In addition, the Board noted that although the Department of Veterans Affairs (VA) may raise or lower a veteran’s disability rating throughout his lifetime, as the degree of impairment associated with a rated condition changes, military disability determinations are fixed as of the date of separation or permanent retirement. As you have not presented any evidence that indicates you were unfit for duty at the time that the PRB took final action in your case, the Board was unable to recommend corrective action. 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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