DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 00009-08
2il November 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 14 November 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 did not accept your contention that you were not
permitted to appear before a physical evaluation board (PEB) .
In this regard, the Board noted that your record contains a
letter dated 11 January 1991 from your disability counselor
which indicates that you informed him on 2 January 1991, that
you would not request reconsideration of the findings made by
the PEB in your case, and that you were going to “presumed
accept” the findings. The PEB presumed your acceptance of its
findings on 11 January 1991, and you were discharged with
entitlement to severance pay on 23 April 1991. Effective 24
April 1991, the Department of Veterans Affairs awarded you a
combined disability rating of 20% for bilateral knee conditions
The VA added a 10% rating for a back condition effective 30
September 2002. The rating for the left knee condition was
increased to 20% effective 22 May 2004, and that for the right
knee to 20% effective 4 June 2004.
The Board concluded that the rating actions taken by the VA in
your case in 2002 and 2004 are not probative of the existence of
error or injustice in your naval record. Although the VA may
amend ratings throughout a veteran’s lifetime as the severity of
rated conditions changes, and add ratings as new conditions
develop secondary to a previously rated condition, disability
ratings assigned by the military departments are fixed as of the
date of separation or permanent retirement.
In view of the foregoing, and as you have not demonstrated that
you were entitled to a combined disability rating of 30% or
higher from the Department of the Navy at the time of your
discharge, 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 PRET
Executive Di
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