Docket No. 7319-18 
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 denied relief by the Board on 2 November 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.  

The Board carefully considered your arguments that you deserve a change to your narrative reason for separation to disability.  You argued that your lower back fracture was not preexisting and the result of your drill sergeant assaulting you during basic training.  Unfortunately, the Board disagreed with your rationale for relief.  The Board examined your claim of assault by your drill instructor and found several inconsistencies that led them to conclude that there was insufficient evidence to support your claim.  First, the Board noted in a medical report dated 27 October 2004 that you informed medical personnel that you had a history of your “back giving out.” In the Board’s opinion, this was strong contradictory evidence because the Board could not fathom a reasonable argument why medical personnel would erroneously report your medical history or why you would falsely inform them of your medical history.  In the Board’s opinion, providing false information to medical personnel about your preservice medical history was not required to hide your assault by the drill sergeant. The Board concluded it was more likely than not that you were truthful with medical personnel in 2004 in order to receive proper treatment for your back condition.  Second, the Board also reviewed your counselling statements from 29 October 2004 and 4 November 2004. These statements were made by your Gunnery Sergeant and Executive Officer, respectively. In both of these statements, the individuals documented that you stated that you were not physically abused during your time in basic training.  While the Board understands your assertion that you were afraid to reveal the truth to your Gunnery Sergeant, the Board felt there was no reason for you to lie to your Executive Officer since you were already being processed out for your back fracture and had the opportunity to report an assault without consequence.  Again, the Board felt this was inconsistent with your version of events.  Finally, the Board examined your previous application to this Board.  In that application, you made no mention of an assault by your drill instructor.  While this is not conclusive evidence that the events you described in your current application did not occur, the Board felt, when considering all the evidence in totality, it supports a finding that insufficient evidence exists to support your assertion of assault by your drill instructor being the cause of your back fracture. Based on the totality of the evidence in your record, the Board affirmed the rationale utilized to deny your previous application.  In the end, they again concluded that there was sufficient evidence to support the Marine Corps’ determination that your back condition was chronic and preexisted your entry into the Marine Corps.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your 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,