DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 01227-08
25 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 20 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 found that you initially enlisted in the Navy on il
June 1991. You were honorably discharged on 30 June 2006 for
the convenience of the government due to a condition, not a
disability, which interfered with your service. The discharge
was specifically based on your use of a continuous positive
airway pressure (CPAP) device for sleep apnea, which made you
non-deployable. You received a highly complimentary evaluation
report for the period ending 30 June 2006 in which you were
recommended for promotion and retention. On 21 March 2007, the
Department of Veteran: Affairs (VA) awarded! you a combined
disability rating of 80%, effective 1 July 2006, for obstructive
sleep apnea, 50%; adjustment disorder with depressed and anxious
mood, 30%; and conditions of each knee, cervical spine,
lumbosacral spine, tinnitus and hypertension, each rated
separately at 10%. In addition, the VA rated three conditions
at 0%, and determined that fifteen other conditions for which
you requested ratings were not incurred in or aggravated by your
naval service. The 50% rating for sleep apnea was assigned
primarily because of your use of a CPAP device, rather than due
to the impairment of social or industrial adaptability caused by
the sleep apnea.
The Board concluded that your receipt of substantial disability
ratings from the VA is not probative of the existence of error
or injustice in your naval record. In this regard, it noted
that the VA assigned those ratings without regard to the issue
of your fitness to perform military duty at the time of your
discharge. The military departments, unlike the VA, are
permitted to assign disability ratings only in those cases where
a service member has been found unfit to reasonably perform the
duties of his office, grade, rank or rating by reason of
physical disability. An administrative disqualification from
deployment, as occurred in your case, is not unfitting per se,
as there is no requirement that a service member be capable of
performing duty in all locations and under every circumstance.
Your record establishes that you performed your duties ina
highly creditable manner notwithstanding your history of sleep
apnea and the numerous other conditions for which you receive
disability compensation from the VA.
While it is unfortunate that you were not permitted to remain on
active duty until you completed sufficient service to qualify
for length of service retirement, you have not demonstrated that
you were discharged in error and that you should have been
separated or retired by reason of physical disability.
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,
\WWu@oo\
W. DEAN PFE
Executive Dir
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