DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 10835-18 
Ref: Signature Date 

Dear 

This letter is in reference to your 22 October 2018 reconsideration request. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.
   
A three-member panel of the Board, sitting in executive session, considered your application on 16 March 2020. The names and votes of the members of the panel will be furnished upon request.  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, relevant portions of your naval record, and applicable statutes, regulations, and policies, and the enclosed advisory opinion (AO) dated 4 February 2020. 

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record.
 
You enlisted in the Marine Corps in 1978, and began a period of active-duty service. On 23 October 1980, while stationed at Naval Base Charleston, you were struck in the face by another player during a football game.  You suffered a serious injury to the bones on the right side of your face and were treated at the Charleston Naval Base Hospital.  You were hospitalized for five days, had surgery to repair fractures to your face, and received two weeks’ convalescent leave.  You reported persistent pain, numbness, and headaches following the October 1980 injury.  In May 1981, you suffered a second injury to your upper torso.  You state that you suffered two separate periods of paralysis in November 1988.  In September 1990, while assigned to the USS GUAM, you were seen by medical and diagnosed with a pinched nerve.  You assert that this diagnosis was erroneous.  You were discharged from active duty on 20 June 1991 with an honorable characterization of service and a reentry (RE) code of RE-1A.  You subsequently affiliated with the Marine Corps Reserve.  Over the following years, you experienced the sudden and unexpected inability to move the left side of your body.  You sought ongoing treatment, which culminated in spinal surgery in July 1994.  In January 1996, the Commanding General (CG), Marine Corps Reserve Support Command, recommended that you receive a medical retirement.  On 20 March 1997, the Physical Evaluation Board (PEB) terminated your case.  You were honorably discharged from the Marine Corps Reserve on 19 August 1999. 

In your application to the Board, you state that you have twice, prior to this present application, sought relief from this Board on these identical issues.1 In your current application, you seek correction to your record to reflect an early medical retirement or medical discharge, or, in the alternative, an early military retirement with credit for 17 years of total service. You also ask for a reexamination of your military and service treatment records to include injuries suffered in October 1980.  You assert that your condition was incorrectly determined to exist prior to enlistment, seek a finding that your in-service injuries were misdiagnosed and mistreated, and ask that the Board conclude that all of your injuries incurred while you were on active duty and entitled to basic pay.  You submit the expert medical opinion of two of your treating neurosurgeons, which, you contend, contradicts the single piece of evidence on which the Board has previously based its denial of relief. You provide personal statements from your mother and former spouse regarding the onset, severity, and nature of your injuries. You also assert, in part, that the PEB’s decision to terminate your case was arbitrary and capricious. 

As part of the Board’s review, the Council of Review Boards reviewed your request, and issued an AO on 4 February 2020.  The AO reviewed your assertion that you were unfit for continued naval service due to a number of disability conditions incurred while on active duty. The AO noted your assertion that the 1993 “congenital small spinal canal” finding was incorrect and reviewed your claim that whiplash and a traumatic brain injury (TBI) rendered you unfit. The AO concluded that the evidence does not support your request.  The AO noted your facial injury in 1980, the November 1983 diagnosis of torticollis (neck pain), a 1987 documented visit to medical, and your 1990 report of radicular symptoms.  The AO took into consideration that you successfully completed your active-duty service and, in 1991, received an RE-1A reentry code in conjunction with your discharge. The AO also noted the 1996 referral by the CG, Marine Corps Reserve Support Command, to the Bureau of Medicine and Surgery for a determination of physical qualifications to remain in the Reserves, and the PEB’s termination of your case in 1997.  The AO remarked upon your continued treatment while you were a Reservist, but noted that none of your surgical procedures occurred while you were entitled to basic pay.  Furthermore, the AO reviewed notes that indicated that your neck condition was the result of 1 NR19970000601 resulted in denial of your request, and NR20060002334 was administratively closed due to lack of new or material evidence. In your current application, you take issue with the AO dated 29 October 1997, which was considered in the review of NR19970000601. The Board notes that an updated AO was obtained for its review; the updated AO makes note of the 1980 facial fracture. 

“wear and tear” and not related to a solitary event. The AO was provided to you, and you were given 30 days in which to submit a response.  When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration. 

The Board carefully considered your request and contentions, including the new information you provided.  The Board took particular note of the opinions of your two treating medical providers and of the medical record from 1980.  The Board noted that the 12 May 2016 letter from Dr. Subach states that he does not believe you were born with a congenitally narrow spinal canal, and that your condition is a “result of wear and tear.” Dr. Subach’s 20 July2018 letter expands his opinions, and states that the changes to your spine are injury-related. The 13 July 2016 letter from Dr. Severson reflects that the deterioration of your cervical spine is due to a degenerative disease of “wear and tear.” 

The Board, like the AO, noted that you completed active duty, received an RE-1A, and successfully drilled for two years in the Marine Corps Reserve.  Even in consideration of your assertions in the memorandum that accompanied your application and the new evidence provided, the Board concurred with the AO’s findings.  The Board noted that your performance of duty was judged to be adequate at the time of your separation from active duty and that the condition for which you were found not physically qualified while in a Reserve status did not manifest as significantly impairing your duties while you were entitled to basic pay.  The Board found that you do not meet the qualifications for a medical retirement or disability discharge under SECNAVINST 1850.4 series.  The Board declined to change the medical documents reflected in your service record, as they accurately reflect the conclusions of the treating medical practitioners at the time.  The Board also determined that, in light of the AO’s recommendation, and in consideration of your in-service and post-service medical records, you are not entitled to a finding that your injuries occurred while you were on active duty and/or while you were entitled to basic pay. The Board also concluded that there is insufficient evidence to establish that the PEB acted in a manner that was arbitrary and capricious, as it considered the evidence and provided a reasonable explanation for its conclusion. Finally, upon review of your record and in consideration of your claims of error and injustice, the Board found that your active-duty service and Reserve service do not qualify you for an early military retirement based on 17 years of total service. 

It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 

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,