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NAVY | BCNR | CY2007 | 02400-07
Original file (02400-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100





 JRE
 Docket No. 02400-07
3 April 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 3 April 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 served on active duty in the Marine Corps from 29 October 1965 to 17 November 1968, when you were permanently retired by reason of physical disability with a disability rating of 40% for the below knee amputation of your left leg. The Department of Veterans Affairs (VA) assigned you combined disability ratings of 50% from 18 November 1968, 70% from 17 July 1985, and 90% from 6 June 1996. on 9 December 1996, VA rating officials determined that although the 10% rating you received effective 18 November 1968 for residuals of a shell fragment wound to your right foot was not warranted, the rating was protected because it had been in effect for more than twenty years.
The Board noted that while the VA may amend disability ratings throughout a veteran’s lifetime, rating determinations made by the military departments are fixed as of the date of a service member’s separation or permanent retirement. The Board was not persuaded that you were entitled to a disability rating in excess of the 40% rating you received on 17 November 1968 for the loss of your lower left leg, as the available records do not show that you suffered from any other ratable disabilities at that time. 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 Director

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