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NAVY | BCNR | CY2007 | 05330-07
Original file (05330-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100





JRE
Docket No. 05330-07
16 May 2008





Dear




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.

The Board found that you served on active duty in the Marine Corps from 23 August 1977 to 19 September 1978, when you were discharged by reason of a personality disorder. You submitted a claim to the Veterans Administration (VA) on or about 8 June 1981, in which you requested service connection for an immature personality with passive aggressive features. The claim was denied by the VA on unknown date. On 5 April 1982, the VA granted you service connection and a 10% disability rating for “bipolar disorder, depressed”, and once again denied your request for service connection for the immature personality with passive aggressive features. The VA rating decision indicates that you were diagnosed with major depression and a personality disorder while hospitalized in 1981. A psychiatrist testified at a personal appearance hearing conducted by VA rating officials that the syrnptomatology you experienced in service was the same that you had when the psychiatrist examined you, and actually was a bipolar
disorder. The medical evidence upon which the psychiatrist based that opinion is not contained in the evidence made available to the Board by the VA, which is the custodian of your service medical record.

The action taken, by the VA on 5 April 1982 is not probative of the existence of error or injustice in your naval record, as the VA assigns disability ratings without regard to the issue of the veteran’s fitness for military service at the time of separation from the service. In addition, VA ratings may be assigned and adjusted at any time following the veteran’s release from active duty. The military departments may assign disability ratings only in those cases where a service member has been found unfit for duty by reason of physical disability. Ratings are assigned as of the dated of separation or permanent retirement, and may not be adjusted thereafter. The available records do not establish that you were unfit for duty by reason of physical disability on 19 September 1978, rather than unsuitable for service because of the effects of a personality disorder. 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,



ROBERT D. ZSALMAN
Acting Executive Director

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