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NAVY | BCNR | CY2009 | 11951-09
Original file (11951-09.pdf) Auto-classification: Denied
DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DG 20370-5100

 

JRE

Docket No. 11951-0909
25 January 2010

 

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.14 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 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.

On 25 October 2006, the Physical Evaluation Board (PEB) made
preliminary findings that you were unfit for duty by reason of
physical disability due to right ankle posttraumatic arthritis,
with subtalar joint limitation of motion and osteochondral
defect which were rated at ten percent disabling. You accepted
those findings on 31 October 2006 and waived your right to
demand a hearing before a physical evaluation board. In
addition, you requested that you be retained on active duty
until 29 January 2007. You were discharged with entitlement to
disability severance pay on 29 January 2007, in accordance with
the approved findings of the PEB and your request.

The Department of Veterans Affairs (VA) granted your request for
service connection for migraine headaches and a condition of
your right ankle effective 30 January 2007, and assigned a
rating of ten percent to each of those conditions. On appeal, .
the VA increased the rating for the migraines thirty percent,
and the rating for the ankle condition was increased to twenty
percent. Each of those ratings was effective retroactive to 30
January 2007.

The Board concluded that your receipt of a VA disability rating
for migraine headaches is not probative of the existence of
error or injustice in your Navy record. In this regard, the
Board found that the VA assigned that rating without regard to
the issue of your fitness for military duty as of 29 January
2007 vis-a-vis the headaches. As you have not demonstrated that
you suffered from prostrating headaches which rendered you unfit
to reasonably perform your duties, that you suffered from any
unfitting conditions other than the ankle condition, or that the
ankle condition was incorrectly rated by the Department of the
Navy, 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,

\Rrau§ Y
7
W. DEAN E

Executive D or

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