Docket No. 6899-18 
Ref: Signature Date 

This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 1552.  Your case was reconsidered in accordance with procedures that conform to Lipsman v. Secretary of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  You were previously granted partial relief on 25 May 2017.  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 for Correction of Naval Records, sitting in executive session, considered your application on 10 January 2019.  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.  Additionally, the Board considered the advisory opinions that were previously obtained in your case along with your response to the opinions. 

The Board carefully considered your arguments that you deserve to be placed on the disability retirement list with at least a 30% disability rating.  You assert that you were unfit for a number of disability conditions including fibromyalgia, chronic compartment syndrome, right wrist condition, and right knee condition.  You also argue that your due process rights were violated by the Marine Corps by their failure to refer you to the Disability Evaluation System and this Board’s decision to utilize Department of Veterans Affairs disability ratings instead of allowing you to have your case heard by the Physical Evaluation Board (PEB). Unfortunately, the Board disagreed with your rationale for relief.  First, in reviewing all the evidence in your case, the Board again concurred with the advisory opinion provided by Director, Secretary of the Navy Council of Review Boards (CORB) in determining that finding you unfit for your right wrist and knee conditions with a combined 20% disability rating was appropriate.  In making their decision, the Board affirmed the rationale utilized in the previous Board decision of 28 July 2018. The Board concluded it was reasonable to rely on your strenuous sporting activities, years after you were diagnosed with chronic compartment syndrome and fibromyalgia, to conclude that you were physically capable of performing the duties of your office, grade, rank or rating despite the existence of the two disability conditions.  In the Board’s opinion, the fact you were able to participate in basketball and snowboarding in the years leading up to your separation from the Navy was strong evidence that your chronic compartment syndrome and fibromyalgia symptoms were not so severe to create a sufficient occupational impairment to result in a finding of unfitness for continued naval service.  Second, regarding your due process arguments, the Board agreed that a reasonable argument can be made that you were deprived of due process rights when the Marine Corps, and, to some extent, this Board chose not to refer you to the Disability Evaluation System.  However, this Board concluded that any due process violations were sufficiently mitigated by the previous Board’s decision to change your narrative reason for separation to disability with the assignment of a combined 20% disability rating.  Director CORB acts as the executive agent for the Secretary of the Navy for disability matters and oversees the PEB.  As such, the Board felt he possesses the required expertise and resources to provide this Board a reliable advisory opinion on whether your disability conditions would have been found unfitting by the PEB and what disability rating should be applied.  In the end, the Board concurred with his opinion of your case based on the evidence provided by you and your legal counsel in support of this application along with your military records.  Accordingly, the Board determined that you were provided a sufficient review of your claim for disability benefits by this Board, with the involvement of your legal counsel, to offset any PEB due process rights lost in your case.  Therefore, the Board concluded insufficient evidence of error or injustice exists to warrant further change to your record. 

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issue(s) involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record.  

It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken again.  You are entitled to have the Board reconsider its decision upon the submission of new and material evidence.  New evidence is evidence not previously considered by the Board.  In the absence of sufficient new and material evidence 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,