DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20376-5100
JRE
Docket No. 06051-08
20 July 2009
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 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 all material submitted in
support thereof, your naval record and applicable statutes,
regulations and policies. The Board was unable to obtain your
Navy and Department of Veterans Affairs (VA) medical records and
VA rating decision(s) from the VA, which has custody of those
documents.
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 enlisted in the Marine Corps on 8
August 2006 after receiving waivers of disqualifying conditions
of your knees. On 19 December 2007, the Physical Evaluation
Board (PEB) determined that you were unfit for duty because of a
condition of your right knee that was related to an in-service
injury, and was ratable at 10%. The PEB determined that a
condition of your left knee was not ratable because it existed
prior to your enlistment and was not aggravated by your naval
service. On 7 January 2008, you signed a document in which you
requested that the PEB reconsider its findings, and stated that
in the event the findings remained the same, you did not desire
a formal hearing. You also indicated that you understood that
your case would be finalized at that point. You signed another
document on 8 January 2008 in which you demanded a formal
hearing. Both documents were faxed to the PEB on 11 January
2008. On 24 January 2008, the PEB reconsidered and confirmed
its previous finding. The findings of the PEB were approved on
$ February 2008, and you were discharged with entitlement to
disability severance pay. .
Although the evidence of record is equivocal, the Board presumes
that you waived your right to a formal PEB, and that your case
was properly finalized by the President, PEB. In addition, it
concluded that you failed to demonstrate that the condition of
your right knee was ratable at or above 30% disabling, or that
your left knee condition was incurred in or aggravated by your
naval service and that you were entitled to a combined
disability rating of 30% or higher for the bilateral knee
conditions. Accordingly, your application has been denied. The
names and votes of the members of the panel will be furnished
upon request. ,
Tt 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 PF
Executive
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