DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 05152-07
17 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 12 June 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 discharged from the Navy on 22
June 2006 by reason of a condition, not a disability, which
interfered with your performance of duty, specifically, your
obesity and use of a continuous positive airway pressure (CPAP)
device to treat sleep apnea, which limited your deployability
and assignment to smaller naval vessels, but did not render you
unfit for duty. You received a highly laudatory evaluation
report and counseling record for the period 2 December 2005-6
June 2006, with an individual train average of 4.14, a “must
promote” recommendation” in item 45, and comments to the effect
that you were a dedicated and conscientious worker with the
potential for success in any work environment. You were not
qualified for Navy Reserve Retirement because you did not serve
in the Navy Reserve from 9 September 1996 to 22 June 2006 or
complete twenty years of qualifying service for reserve
retirement.
Your receipt of substantial disability ratings from the
Department of Veterans Affairs (VA) does not demonstrate that
your discharge from the Navy is erroneous, because the VA awards
ratings without regard to the issue of fitness for military
duty. For example, you received a rating of 50% merely because
you use a CPAP device, which is designed to ameliorate your
sleep apnea condition. The 16 May 2007 determination of the VA
that you are unemployable and therefore entitled to disability
payments at the 100% rate appears to have been based on your
subjective belief that you were unable to work, rather than
objective evidence that demonstrated that you were unable to
work because of the cumulative effects of your rated conditions.
In the absence of evidence which demonstrates that you were
unfit to reasonably perform the duties of your office, grade,
rank or rating by reason of physical disability on the date of
your discharge, the Board was unable to recommend 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,
W. DEAN PFET E
Executive Ditéctor
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