DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DG 20370-5100 .
JRE
Docket No. 00136-08
3 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 30 October 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. In addition, it considered the
enclosed advisory opinion from the Director, Secretary of the
Navy Council of Review Boards, dated 4 September 2008.
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. In this connection, the Board substantially
concurred with the comments contained in the advisory opinion.
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,
Week
W. DEAN PFET
Executive Dire
Enclosure
4
DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
.720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD DC 20374-5023 | INREPLY REFERTO
5220
CORB: 002
4 Sep 2008
From: Director, Secretary of Navy Council of Review Boards
To: Executive Director, Board for Corrections of Naval
Records
Subj: REQUEST FOR COMMENTS AND. THE CASE
prumamcmaiaa fat haat a ae ae ta ie i _ r yo
Ref: (a) Your ltr JRE: jdh Docket No. 130-08 of 6 Aug 08
(b) SECNAVINST 1850.45
1. Documents contained in Ref (a) were reviewed in
accordance with Ref (b).
2. Petitioner’s DD FORM 149, [see Ref (a)] appears to
request the opportunity to appeal the 28 June 2007 IPEB
finding which continued petitioner’s rating of 30% under
VASRD Code 5262 and placed him on the PDRL. Ref (a)
appears to contend that he was denied the opportunity to
appeal his 28 June 2007 IPEB finding so as to have his
“retirement percentage changed.” In the absence of further
clarification, please note that for purposes of this
response, it is assumed that petitioner’s intent is to
obtain a higher rating. After careful consideration, the
available evidence is insufficient to warrant recommending
either a denovo hearing or a retrospective increase in the
percentage awarded by the 28 June 2007 IPEB. This decision
is based on the following:
a. PEB transmittal records which indicate that:
(1) A 28 June 2007 IPEB determined that
petitioner’s healed OPEN TYPE II A/B TIBIA AND FIBULAR
FRACTURE for which he had been placed on the TDRL continued
to rate 30% under VASRD Code 5262.
(2) These findings were delivered to either
petitioner or his designated representative at 5:26 pm on
11 July 2007.
AS
SS
Subj: REQUEST FOR COMMENTS AND RECOMMENDATIONS IN THE CASE
OF FORMER SieSeee enaiancasiauiit sh peiatmuns ecacams
{3) Because no response was received, acceptance
was “presumed” on 16 August 2007-almost five weeks after
delivery and well over two weeks beyond the mandated
response time limit of 15 days.
b. Given evidence of clinical improvement (e.g.,
absence of expressed need for medical treatment and ability
to be gainfully employed), and the absence of other
unfitting residuals contained noted in the 30 May 2007 TDRL
Periodic Physical Evaluation report, the IPEB appears to
have awarded some benefit of the doubt in its decision to
Place petitioner on the PDRL at 30%,
3. The PEB process appears to have been fair and accurate.
However, should petitioner wish to submit further evidence,
including all records of health care since placement on the
TDRL, I would be pleased to reconsider his application.
Hdd pall
RK D. FRANKLIN
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