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NAVY | BCNR | CY2009 | 08005-09
Original file (08005-09.pdf) Auto-classification: Denied
DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX ,
JRE

WASHINGTON DC 20370-5100
Docket No. 08005-09
4 February 2010

 

 

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.

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 22 January 2010. 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 poiicies. —

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 Physical Evaluation Board (PEB) considered your case on 16
December 1968 and found you fit for duty. You disagreed, and
demanded a hearing, at which you requested that you he found
unfit for duty and assigned a rating of 10%. On 2 June 1999, a
formal hearing panel of the PEB considered your case and
assigned you a combined disability rating of 10% for conditions
of your lumbar and cervical spine. The revised findings of the
PEB were approved, and you were discharged with entitlement to
disability severance pay on 15 November 1999. On 15 August 2000,
the Department of Veterans Affairs (VA) awarded you a 40% rating
for the condition of your lumbar spine and 20% for the condition
of your cervical spine.
The Board noted that the disability ratings assigned by the PEB
were based on the severity of your condition at the time the PEB
considered your case. The 10% rating was based on the results
of an examination which indicates that you had nearly full range
of motion in your lumbar and cervical spine. The ratings
assigned by the VA, although made effective the day following
your discharge, were based on the results of an examination
conducted approximately five months later, which indicate that
significant limitation of motion in your lumbar and cervical
spine was noted during the examination. It is important to note
that while VA ratings are often based on changes in a veteran’s
condition which occur following discharge, those assigned by the
military department are fixed as of the date of separation or
permanent retirement.

As you have not demonstrated that your disabilities met the
eriteria for the assignment of a combined rating of 30% or
higher as of 15 November 1999, the Board was unable to recommend
corrective action in your case. 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,

\ poor
W. DEAN R

Executive Di or

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