DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
"WASHINGTON DC 20370-5100 JRE
Docket No. 01304-08
12 December 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 4 December 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 dut in the Marine
Corps from 1 April 2000 to 31 August 2007, when you were
discharged by reason of physical disability, with entitlement to
severance pay, because of an unfitting condition of yor right
shoulder. Effective 1 September 2007, the Department of
Veterans Affairs (VA) assigned you separate disability ratings
of 10% for your right and left shoulders and timmitus, and 0%
ratings for five other conditions. The VA denied your request
for service connection for nine other conditions.
The Board did not accept your contention to the effect that you
are entitled to be retired by reason of physical disability
because your right shoulder condition is permanent and has
required further surgery. In this regard, it noted that a final
disability rating of 30% or higher is required in order for a
service member to be retired by reason of physical disability,
unless the service member has completed sufficient service to
qualify for transfer to the Fleet Reserve. Your receipt of a
combined disability rating of 30% from the VA is not probative
of the existence or error or injustice in your naval record,
because the VA assigns disability ratings without regard to the
issue of a service member’s fitness for military duty at the
time of separation. In the absence of evidence which
demonstrates that your left shoulder strain and tinnitus
rendered you unfit for duty, there is no basis for correcting
your record to show that you were 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,
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