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NAVY | BCNR | CY2005 | 08120-05
Original file (08120-05.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
                  JRE
                                                                                          Docket No. 08120-05
                                                                                          6 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. The Board’s review was limited to your request for disability retirement, as you have not exhausted an available administrative remedy by applying to the Naval Discharge Review Board for upgrade of your discharge to honorable.
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 5 October 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. In addition, it considered the comments provided by 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 reenlisted on 4 May 1999 for six years. You underwent a physical examination on 7 May 2003 and were found physically qualified to perform the duties of your rate at sea and on foreign service. On 23 June 2003, after being advised by your commanding officer of your rights in connection with your proposed discharge by reason of misconduct, you waived your rights to consult with counsel, to appear before an administrative discharge board, and to submit matters in your own behalf. You were discharged by reason of misconduct/commission of a serious offense on 8 August 2003, with a discharge under other than honorable conditions.




The Board was not persuaded that you were unfit to reasonably perform the duties of your office, grade or rating by reason of physical disability at the time of your discharge. As noted above, you were found to be physically qualified for duty when examined on 7 May 2003. You were not suffering from a seizure disorder or other unfitting conditions at that time, and it is clear you could have continued to perform your duties without limitation had you not been discharged by reason of misconduct. The Board noted that you would not have been entitled to disability retirement of separation even if you had been unfit for duty, because processing with a view toward separation by reason of misconduct would have taken precedence over and precluded disability evaluation processing. 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 PFE IFFER
Executive Di rector

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