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NAVY | BCNR | CY2006 | 02099-06
Original file (02099-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


 JRE
Docket No. 02099-06
3 May 2007

Dear
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 26 April 2007. 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 23 April 2004, the Physical Evaluation Board (PEB) made preliminary findings that you were unfit for duty because of posttraumatic cervical fibromyalgia, which it rated at 10% under Department of Veterans Affairs (VA) code 5025. In addition, the PEB determined that although you had diagnoses of posttraumatic stress disorder, pain disorder associated with a general medical condition and psychological factors, and idiopathic scoliosis, those conditions were not separately unfitting and did not contribute to the unfitting fibromyalgia. Yo u accepted the findings of the PEB on 12 May 1004, and were discharged with entitlement to disability severance pay on 10 July 2004. On 12 August 2005, the Department of Veterans Affairs awarded you a combined rating of 60% for fibromyalgia, head injury with headaches, cervical strain, lumbar strain, anxiety disorder and posttraumatic stress disorder, and three other conditions rated at 0%. The VA denied your request for service connection for sixteen additional conditions .

The Board found that the VA must rate all conditions it determines are “service connected”, i.e., incurred in, aggravated by or merely traceable to a period of military service, and ratings are assigned without regard to the issue of fitness for military duty. Unlike the VA, the military departments are permitted to rate only those conditions that render a service member unfit for duty, or contribute to an unfitting condition and warrant a separate rating. As you have not demonstrated that you were entitled to a rating in excess of 10% for fibromyalgia, or to ratings for any of the other conditions from which you suffered, the Board was unable to recommend any corrective action in your case. Accordingly, the Board denied your application. 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,

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