DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 11486-10
il August 2011
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 2552,
A three-member panel of the Board for Correction of Naval Records,
Sitting in executive session, considered your application on 11
August 2011. 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.
You reenlisted in the Navy on 25 October 2000 with 3 years, 11 months
an dll days prior active service. On 6 November 2003, the Physical
Evaluation Board (PEB) found you fit for duty notwithstanding your
conditions of pathological gambling, alcohol dependence and
depressive disorder. In addition, it is noted in your disability
evaluation proceedings that you were not within Navy weight
Standards, as you were 5'9” tall and weighed 230 lbs. You underwent
a microdiscectomy at the L4-S1 level on 22 June 2004. On 11 March
2004 you underwent a post~surgical evaluation conducted by an
orthopedic surgeon and were found fit for duty. On 2 April 2004,
the Chief of Naval Personnel directed that you be processed for
separation by reason of a condition, not a disability, based on your
unsuitability for operational duty because of the effects of the
depressive disorder, alcohol dependence and pathological gambling.
After being advised of your rights in connection with the proposed
separation, you waived your right to consult with and be represented
by counsel and to present your case to an administrative discharge
board. You were discharged for the convenience of the government
on 19 April 2004 by reason of a condition, not a disability.
Thereafter, the Department of Veterans Affairs (VA) awarded you a
disability rating of 30% for depression and anxiety, and separate
10% ratings for gastroesophageal reflux disease, irritable bowel
syndrome, and a condition of your lumbar spine.
Your receipt of disability ratings from the VA is not probative of
the existence of error or injustice in your naval record because the
VA assigned those ratings without regard to the issue of your fitness
for military duty as of the date of your discharge. In the absence
of evidence which demonstrates that the PEB erred when it found you
fit for duty, or that your lower back condition was unfitting on 19
April 2004, the Board was unable to recommend favorable action on
your request. 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,
9 Doerdead I
W. DEAN PFBIF
Executive ir oO
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