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NAVY | BCNR | CY2006 | 10102-06
Original file (10102-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100




 JRE
 Docket No. 10102-06
3 December 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 29 November 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 October 1985, the Central Physical Evaluation Board (CPEB) made preliminary findings that you were unfit for duty because of the residuals of injuries to the cervical spine that you sustained on 8 December 1984 in a motor vehicle accident, and that the disabilities were not ratable because you were injured as a result of your own misconduct. The latter finding was based on the report of investigation into the circumstances of the accident, which indicates, in part, that your blood alcohol level was measured at .189% several hours after the accident occurred, and that you were operating the vehicle during hours of darkness at an excessive rate of speed. You rejected the findings of the CPEB and demanded a formal hearing. You sustained injuries to your cervical spine on 29 October 1985 in a second motor vehicle accident. Those injuries were found to have been incurred in the line of duty. The formal hearing before the PEB was conducted on 22 April 1986. You contended that the injuries you sustained on 8 December 1984 were incurred in the line of duty. You testified that the accident occurred as you tried to avoid a dog that had run into the roadway. You maintained that you were not intoxicated, and that although you were driving at 55 miles per hour, you did not know that the speed limit at that location was 20 miles per hour. You also argued that you had recovered from your injuries prior to 23 October 1985, and that you became disabled as a result of the injuries you sustained in the second motor vehicle accident. The members of the formal panel of the PEB accepted your argument concerning the alleged recovery and re-injury, and assigned you a combined rating of 60% for residuals of the injuries you sustained on 29 October 1985. You were released from active duty on 10 June 1986, and retired by reason of physical disability.

Following your release from active duty, you applied to the Veterans Administration (VA) for disability benefits for residuals of your spinal injuries. VA rating official denied your request, based on their determination that your disabilities were residual to the injuries you sustained in December 1984, which were the result of your own misconduct, and that those disabilities were not aggravated by the second motor vehicle.
The Board carefully reviewed the transcript of your hearing before the formal PEB, but found the evidence and arguments you submitted to the formal PEB were insufficient to demonstrate that the injuries you sustained on 8 December 1984 were incurred in the line of duty, and not as a result of your own misconduct. The Board noted that the available evidence establishes that you were operating a motor vehicle at a high rate of speed during the hours of darkness, while severely intoxicated, which would have severely limited your ability to perceive and safely react to road hazards in a timely and effective manner.
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. 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 PF EIFFER
Executive Director

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