DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2NAVYANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 04130-04
11 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 10 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. In addition, the Board considered
the advisory opinion furnished by the Director, Naval Council of
Personnel Boards dated 25 October 2004, a copy of which is attached.
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, the Board substantially concurred with the comments
contained in the advisory opinion. 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,
Enclosure
DEPARTMENT OF THE NAVY
AL COUNCIL OF PERSONNEL BOARDS
720 KEN NON STREET SE STE 309
WASHINGTON NAVY YARD DC 20374-5023
IN REPLY
REFER TO
5220
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25 Oct 04
From: Director, Naval Council of Personnel Boards
To: Executive Director, Board for Corrections of Naval Records
Subj: REQUEST FOR COMMENTS AND RECOMMENDATIONS IN THE CASE
OF
Ref: (a) Your ltr JR:jdh Docket No: 04130-04 of 31 Aug 04
(b) SECNAVINST 1850.4E
1. The petitioner’s case history, contained in reference (a), was
thoroughly reviewed in accordance with reference (b) and is
returned. The following comments are provided.
2. BCNR application contends, “my records do not show evidence of
my recurring Migraine Headaches connected to my Seizures.
3. Available records include the following:
a. Petitioner had been under evaluation by Jacksonville, FL
Naval
Hospital Neurologist CDR , MC, USN on 15February 1998
for possible “Basilar [Artery] Migraine.
b. Dr.~i~made no mention of migraine on petitioner s
subsequent 26 February 1998 Medical Evaluation Board.
c. A 5 March 2003 Physical Evaluation Board(PEB) sf93
Physical Examination includes reference to treated Migraine
Headaches with no indication that this condition was disqualifying.
d. VA Rating Decision records indicate that petitioner’s
Migraine was determined to have been service connected and ratable,
accordingly, as its manifestations worsened on the Temporary
Disability Retirement List(TDRL).
e. A 9 March 2004 “ELECTION OF OPTION FOR INFORMAL BOARD
PRELIMINARY FINDING” waived the right to a Formal PEB and requested
reconsideration with a 22 April 2004 note adding “Migraines” to the
request. Unfortunately, petitioner’s request, apparently, failed to
arrive in the prescribed time interval; and a ‘presumed acceptance’
had already been initiated.
Subj: REQUEST FOR COMMENTS AND RECOMMENDATIONS IN THE CASE
4. In conclusion, the above suggests that petitioner’s Migraine
Headaches were present but not separately unfitting at the time of
placement on the TDRL. Additionally, while Migraine Headaches have been
known to be associated with the later development of seizure phenomena in a
small percentage of cases, the reverse does not appear to be likely, here.
Hence, in the absence of evidence to the contrary, it does not appear that
petitioner’s Migraine Headaches were due to the Seizure condition for which
he was determined to have been unfit by the PEB. Consequently, the
available evidence appears to be inadequate to warrant a retrospective
change in either of subject PEB findings at this time.
2
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