DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 05771-08
20 July 2009
This is in reference to your application for correction of your
naval record pursuant to the provisions of titie 10 of the
United States Code, section 1552. You contend that you are
statutorily entitled to a disability rating of 50%
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 9 July 2009. 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 ali 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 were released from active duty 4 April
2002 and transferred to the Temporary Disability Retired List
with a disability rating of 100%. On 9 April 2007, the Physical
Evaluation Board determined that you remained unfit for duty
because of a pulmonary disorder rated at 30% and dementia due to
a general medical condition rated at 10%. You accepted the
findings of the PEB on 2 May 2007 and were permanently retired
with a combined disability rating of 40%.
The computation of disability retired pay is governed by the
provisions of 10 US Code 1401, which provide, in effect, that
service members whose names are on the TDRL are entitled to a
minimum of 50% of their retired pay base amount, and that those
who are permanently retired are entitled to an amount determined
by multiplying the retired pay base amount times the final
combined disability percentage, up to a maximum of 75%. As your
final combined disability rating is 40% and you are no longer on
the TDRL, you are entitled to 40% of your retired pay base
amount, rather than 50% as you contend. 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,
Lo \WeawSep |
W. DEAN PFHIF
Executive e n
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