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NAVY | BCNR | CY2007 | 04043-07
Original file (04043-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


 JRE
 Docket No. 04043-07
2 June 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 15 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.
On 6 November 2006, the Physical Evaluation Board (PEB) made preliminary findings that you were fit for duty, notwithstanding your diagnoses of a right anterior ligament tear and a postoperative infection. After being advised of those findings and of your right to request reconsideration of the finings and/or a formal hearing, you unconditionally accepted the findings. Your case was finalized by the President, PEB, on 30 November 2006. As you continued to complain of knee pain, you were subsequently found not deployable. You were honorably discharged from the Navy on 26 April 2007, by reason of a condition, not a disability, which interfered with your performance of duty. On 25 October 2007, the Department of Veterans Affairs (VA) awarded you individual ratings of 10% for status/post right anterior cruciate ligament tear and posttraumatic stress disorder.









The finding that you were not deployable because of knee pain is not equivalent to a finding of unfitness for duty, and did not mandate that you case be reconsidered by the PEB, as the inability to perform duties in all locations and under every circumstance is not a valid basis for a finding of unfitness. Your receipt of disability ratings from the VA is not probative of the existence of error or injustice in your naval record, because the VA assigns disability ratings without regard to the issue of a veteran’s fitness for military duty.
The Board concluded that you have failed to demonstrate that your knee condition was severe enough to preclude you from performing duties appropriate to your rank and rating. 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 PFEI FFER
Executive Di rector

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