DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 07872-08
11 May 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 30 April 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. In addition, the Board considered the
advisory opinion furnished by the Director, Sécretary of the
Navy Council of Review Boards 19 December 2008, a copy of which
is attached.
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,
TTR ete BST
ROBERT D.~2ZSALMAN
Acting Executive Director
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 REFER TO
5220
CORB: 002
19 Dec 608
From: Director, Secretary of the Navy Council of Review
Boards
To: Chairman, Board for Correction of Naval Records
Subj: | REQUEST FOR COMMENTS AND RECOMMENDATION ICQ FORMER
Ref: (a) Your ltr JRE:jdh Docket No.7872-08
(b) SECNAVINST 1850.45
1. Reference (a) has been reviewed in accord with Ref (b).
It is determined that available evidence, while useful, is
insufficient to warrant recommending the requested
retrospective change in petitioner’s 15 May 2007 IPEB
finding to reflect placement on the PDRL vice TDRL for her
spinal condition.
2. This decision is based on the fact that the
considerations involved are more complex than whether the
appropriate diagnosis is Arachnoiditis—as contended by
petitioner or the “lumbar radiculopathy” and
“intervertebral disc degeneration” diagnosed by the 2 April
2007 MEB that referred petitioner’s case to the PEB. For
example, paragraph 3601 of Ref (b) requires that service
members be placed.on the TDRL “when they would be qualified
for permanent disability retirement but for the fact
that..accepted medical principles indicate [it is more
likely than not] the severity of the condition will change
within the next 5 years so as to result in an increase or
decrease of the disability rating percentage...” That this
condition was satisfied by the IPEB is supported by
evidence submitted with Ref (a)-including the above
referenced MEB and Encl (30) which indicated that
arachnoiditis is considered to be “relentless and
progressive”.
3. Tt is noted that petitioner is approaching 18 months on
the TDRL, which is the mandated timeframe for re-evaluation
of her TDRL status by the PEB. Serendipitously, this would
appear to provide the most appropriate venue for petitioner
to vet her concerns. -
Subj:
REQUEST FOR COMMENTS AND RECOMMENE ON ICO FORMER
4, In summary, the available evidence appears insufficient
.to warrant recommending the requested retrospective
placement on the PDRL. Petitioner is encouraged to express
her concerns during her imminent TDRL re-evaluation
IAM.
RK D. FRANKLIN
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