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NAVY | BCNR | CY2007 | 03478-07
Original file (03478-07.pdf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

JRE
Docket No. 03478-07
6 May 2008

 

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 1 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,

The Board found that on 28 January 2005, the Physical Evaluation
Board (PEB) made preliminary findings that you were unfit for
duty by reason of bilateral knee conditions, each of which was
rated at 10%. you rejected those findings on 2 March 2005 and
demanded a formal hearing. On 10 March 2005, an addendum to
your medical evaluation board report was drafted to address your
complaints of bilateral] shoulder pain, chronic low back pain and
bilateral carpal tunnel syndrome. You withdrew your demand for
a hearing on 11 April 2005, and accepted the findings of the
PEB. Those findings were approved on 14 April 2005, ana you were
discharged with entitlement to disability severance pay on 31
May 2005. On 6 September 2005, the Department of Veterans
Affairs (VA) awarded you 10% ratings for arthritis of the right
knee, an osteochondral defect of the left knee, and bilateral
tendonitis of the shoulders, and 0% ratings for conditions of
your wrists, lumbar and thoracic spine, and pseudofolliculitis
barbae.

The MRI report you submitted with your application was
apparently considered by the PEB, as a copy of that report is
filed in your Disability Evaluation Proceedings. It is unclear
whether or not the 10 March 2005 addendum to the medical
evaluation board was approved and forwarded to the PEB for
review; however, that issue is moot in view of your acceptance
of the findings of the PEB and withdrawal of your demand for a
formal hearing.

The fact that the VA awarded you disability ratings for
bilateral shoulder conditions is not probative of the existence
of material error or injustice in your naval record, because the
VA made that award without regard to the issue of fitness for
military duty vis-a-vis the shoulder conditions. As the Board
was not persuaded that the bilateral shoulder conditions
rendered you unfit for duty, or contributed to your unfitting
knee conditions, it was unable to recommend any corrective
action in your case. 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,

Weal

W. DEAN PF R
Executive D tor

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