DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 03279-04
15 March 2005
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 3 March 2005. 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. In this connection,
Board concurred with the determination of the Combat Related Special
Compensation (CRSC) Branch, Secretary of the Navy Council of Review Boards,
that the degenerative conditions of your knees and spine for which you are
receiving disability compensation from the Department of Veterans Affairs
(VA), should not be classified as “combat-related”. It noted that the 1
March 2001 determination of the Judge Advocate General (JAG) that your left
knee disability “was incurred in the line of duty as a direct result of a
combat-related disability as defined in title 26, section 104 of the United
States Code” is not binding of the CRSCB or
the Board, as it relates to the issue of the taxability of your retired
pay, rather than your entitlement to CRSC. In addition, the Board concluded
that the JAG determination is not supported by the available records.
The Board found that you injured your left knee in 1978 while playing
football. You apparently began to favor that knee, and developed pain and
degenerative changes in your right knee over the next twelve years. Your
health record contains entries dated 26 November and 11 December 1990 that
indicate you suffered from degenerative joint disease of both knees, and
bilateral patellofemoral syndrome, respectively. There are no
contemporaneous records of the knee injuries you maintain you suffered on
11 November 1990. Your description of what occurred on that date, however,
indicates that you fell when your previously injured left knee gave way, as
it had on occasion prior to that time. Given those circumstances, there is
no basis for classifying any injuries you may have sustained on that date
as having been caused by the operation of an instrumentality of war, or
incurred in armed conflict. The fact that your fitness report covering the
period in question indicates that you sustained two knee injuries does not
demonstrate that you sustained significant trauma to your knees during that
period, or that the referenced injuries should be classified as combat-
related. The Board concluded that even if it were to assume that your knee
conditions were caused by the operation of an instrumentality of war, there
would be no basis for a similar classification of the cause of your spinal
condition. It noted that you complained of back pain on multiple occasions
during your naval service, beginning more than 20 years before you served
in Operation Desert Shield. It could not discern a causal connection
between your knee and spinal conditions.
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.
2
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 PFE:
Executive Dire
3
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