DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 02133-07
21 August 2008
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 August 2008. 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 you were discharged from the Navy on 15
August 2006 in accordance with the provisions of Military
Personnel Manual article 1910-170, Physical Standards, based on
your multiple failures of the Navy's physical fitness assessment
due to your overweight condition. You received approximately
$29,000.00 in separation pay. Effective 16 August 2006, the
Department of Veterans Affairs (VA) grated you service
corrected by the use of a continuous positive airway pressure
(CPAP) device, and 0% for arthritis of the cervical spine,
bilateral knee conditions, penile deformity, and hypertension.
On 24 March 2007, the VA added a 30% rating for left ventricular
hypertrophy, based on the results of an electrocardiogram which
showed mild concentric ventricular hypertrophy. The rating for
the heart condition was made effective from 16 August 2006. On 6
November 2007, the VA increased the rating for the condition of
your cervical spine to 30% effective 8 August 2007.
The Board was not persuaded that you were improperly denied the
opportunity to request transfer to the Retired Reserve in lieu
of discharge with entitlement to separation pay for failing to
meet PFA standards. The Board noted that you will be entitled to
retired pay at age 60 as a former member of the Navy Reserve.
Although you suffered from a number of medical conditions during
your period of naval service, to include the mild left
ventricular hypertrophy, a cervical spine condition, and
controlled sleep apnea, which the VA rated at 30, 30 and 503%,
respectively, there is no indication in the available records
that any of those conditions Significantly impaired your ability
to perform your military duties, or warranted evaluation by a
medical board. The fact that the VA granted you substantial
disability ratings effective the day following your discharge
from the Navy is not probative of your contentions of error and
injustice, because those ratings were assigned without regard to
the issue of your fitness for military duty. Accordingly, and as
you have not demonstrated that you were unfit to reasonably
perform the duties of your office, grade, rank or rating by
reason of physical disability on 15 August 2006, 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 R
Executive to
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The applicant provides: * Department of Veterans Affairs (VA) Rating Decision * DA Form 3349 (Physical Profile) * letter to the physical evaluation board (PEB) * service medical records * VA medical records CONSIDERATION OF EVIDENCE: 1. On 13 July 2004, a medical evaluation board (MEB) diagnosed him with neck pain with cervical DDD and bilateral radiculopathy. The board's scope of review was limited to those conditions determined by the PEB to be unfitting for continued military service...
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Counsel requests correction of the applicant's records to show: * he was medically retired and placed on the Retired List at the rate of 50 percent (50%) effective 12 February 2007 * entitlement to back retired pay from the date of his transfer to the Retired Reserve to the present 2. The applicant should be retired. Counsel provides: * DA Form 199 (PEB Proceedings) * Request for Transfer to the Retired Reserve in lieu of Disability Processing * Transfer to an Inactive Status Discharge...
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Left Shoulder Condition . At the VA C&P examination, performed 16 months prior to separation, the CI reported a cervical spine injury in 1998 with continual pain accompanied by a left upper extremity radiculopathy. Based on the ROMs in the record the Board was unable to find a route to a higher rating.The MEB referred cervical spondylosis with C7-8 radiculopathy; however, the PEB noted cervical spondylosis “without significant neurologic abnormality.” The Board considered whether an...
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