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NAVY | BCNR | CY2007 | 02275-07
Original file (02275-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
         BOARD FOR CORRECTION OF NAVAL RECORDS
WASHINGTON DC 20370-5100
        


         JRE
 Docket No. 02275-07
          27 May 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 8 May 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 enlisted in the Navy on 6 February 2001. It appears that your enlistment was fraudulent, in that you concealed the following material facts in order to effect your enlistment: service in the Air National Guard, which was terminated because of a medical disqualification; a claim for disability benefits submitted to the Department of Veterans Affairs; multiple traumatic brain injuries; and the use of a psychiatric medication. You were discharged from the Navy on 6 March 2003 for failing to meet the minimum physical/mental standards for enlistment. Following your discharge the VA awarded you service connection and disability ratings of 30% for what appears to be largely subjective residuals of an appendectomy; 10% for an allegedly tender and painful appendectomy scar; and 10% for presumed residuals of an in-service head injury.
The Board was not persuaded that you were unfit for duty by reason of a physical disability that was incurred in or aggravated by your naval service. The available records do not establish that you had any unfitting residuals of an appendectomy or a minor head injury prior to your separation from the Navy, or that your discharge for failing to meet procurement physical or mental standards was in error. The fact that the VA awarded you substantial disability benefits is not probative of the existence of error or injustice in your naval record, because the VA did so without regard to the issue of your fitness for military duty at the time of separation. In addition, the Board concluded that in view of the fraudulent nature of your discharge, it would not be in the interests of justice for it to take any action that would permit you to profit from your fraudulent actions. 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 PFEIFFER
Executive D irector

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