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NAVY | BCNR | CY2007 | 03233-07
Original file (03233-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100




 JRE
 Docket No. 03233-07
 20 February 2008



This is in reference to yo ur 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 14 February 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 evaluated by a medical board on 9 March 1988 and given a diagnosis of mechanical low back pain. On 13 June 1988, the Physical Evaluation Board (PEB) made preliminary findings that you were unfit for duty because of your back condition, which it rated at 10 percent disabling. You accepted those findings contingent upon your being retained on active duty until you completed twenty years of active duty service. The contingency was accepted, and you were continued on active duty. As you were not considered fit for sea duty, you were reassigned to a shore assignment in a recruiting billet. In a letter dated 11 October 1988, your commanding officer recommended that your case be reconsidered by the PEB because you had shown that you were not capable of performing the least demanding physical tasks or simple office work to a level that would make you a benefit to his command. He noted that you wanted to be discharged because of your inability to provide meaningful or productive work to any command,
and to prevent further movement of your family on permanent change of station orders. You were reevaluated by a medical board on 7 November 1988. That board confirmed the diagnosis of mechanical low back pain, and recommended that your case be forwarded to the PEB. On 5 December 1988, the PEB determined that you were unfit for duty, and that your condition was ratable at 20%. You accepted those findings on 15 December 1988, and were discharged with entitlement to disability severance pay on 24 February 1989, having completed 19 years, 1 month and 17 days of active service.
The Board concluded that you failed to demonstrate that you should have received a disability rating of 30 percent or higher, which would have qualified your for disability retirement, or that you should have been continued on active duty until you completed 20 years of active service. In this regard, it noted that your disability evaluation was reopened at your request, because you felt you could no longer provide meaningful or productive work. In addition, you accepted the PEB’s determination that your condition was ratable at 20 percent. By requesting that your case be reopened, and unconditionally accepting the revised findings of the PEB, you forfeited the right to remain on active duty until you completed 20 years of service. Although it appears that you made the wrong choice, there is no basis for reversing that decision at this time, approximately 19 years after you were discharged with entitlement to disability severance pay. The Board considered the circumstances of your transfer from sea to recruiting duty immaterial to the issue of the propriety of your discharge
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 PFEIFFER
          Executive Director

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