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NAVY | BCNR | CY2005 | 04829-05
Original file (04829-05.rtf) Auto-classification: Denied
                  DEPARTMENT OF THE NAVY
          -         BOARD FOR CORRECTION OF NAVAL RECORDS
                   2 NAVY ANNEX
          -        WASHINGTON DC 20370-5100



         JRE
 Docket No. 04829-05
 10 October      2006










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 September 2006. 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 on 15 April 2002, the Physical Evaluation Board made preliminary findings that you were unfit for duty because of a condition of your lower back that it rated at 40% disabling. As you accepted those findings, you were released from active duty and transferred to the Temporary Disability Retired List. You were reevaluated by the PEB on 2 June 2004, and found fit for duty. You were notified by the PEB of that finding on or about 23 July 2004. As the PEB did not receive a timely response to that notification, it presumed that you had accepted the finding of fitness. Your case was finalized by the PEB on 23 August 2004, and you were discharged with entitlement disability severance pay.

The Board noted that the removal of your name from the TDRL was required because you were unfit by reason of physical disability, and your condition was rated below 30% disabling, and you would not have been entitled to retention on the TDRL even if your request to remain on the TDRL had been received by the PEB prior to your discharge. 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.
If you believe you are fit for reenlistment at this time, you should consider contacting a recruiter and applying for enlistment.
Sincerely,


W.       DEAN PFEIFFER
Executive Direct or

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