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DEPARTMENT OF THE NA VY

JRE
Docket No. 05346-07
22 May 2008

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 22 May 2008. 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.

The Board found that you enlisted in the Marine Corps on 19 April 2004. You were examined on 16 August 2004, and found ~alified for separation. The examination report indicates that you has a history of femoral and medial malleous stress fractures, and that you had been cleared for separation by the sports medicine and podiatry departments. You were discharged on 18 August 2004, with an entry level separation, by reason of entry level performance and conduct. The Department of Veterans Affairs (VA) awarded you a disability rating of 10% from 20 August 2004 for status/post stress fracture, right fibula with ankle pain. Effective 13 June 2007, the VA added 10% ratings for right and left knee strain associated with a right femur stress fracture and 30% for major depression associated with the right fibula and ankle pain. Effective 29 November 2007, the VA added a 10% rating for left hip strain associated with the right femur stress
fracture, effective 29 November 2007.

The Board concluded that you were not entitled to a characterized discharge because your separation processing was initiated during your first 180 days of service, and there were no unusual circumstances that would have warranted a recommendation to the Secretary of the Navy that you receive a characterized discharge as an exception to. policy.

Your receipt of combined VA disability ratings of 10% from 20 August 2004, 60% from 13 June 2007, and 70% from 29 November 2007, is not probative of the existence of error or injustice in your Marine Corps record. In this regard,, the Board found that the VA assigned those rating without regard to the issue of your fitness for military duty on the date of your separation from the Marine Corps. Furthermore, the combined ratings of 60% and 70% were based on changes in your conditions which occurred several years after you were discharged. The military departments, unlike the VA, are permitted to assign disability ratings only in those cases where a service member has been found unfit to reasonably perform the duties of his or her office, grade, rank or rating at the time of separation, and ratings are fixed as of that date. The issue of entitlement additional and/or increased ratings for changes which may occur thereafter is under the purview of the VA, rather than the Department of the Navy.

As the Board was not persuaded that you were unfit for duty on 19 August 2004, it was unable to recommend any 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.

If you believe that the basis for your discharge should be changed from entry level performance and conduct to something other than physical disability, you should consider applying to the Naval Discharge Review Board. You may do so by submitting the enclosed DD Form 293. .

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,

W.	DEAN PFEIFFER
Executive Director