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

Docket No. 9245-18 
Ref: Signature Date 

Dear

This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 12 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, as well as applicable statutes, regulations, and policies.  In addition, the Board considered the advisory opinion contained in Director CORB letter 5220 CORB: 001 of 22 January 2020.  The advisory opinion was provided to you on 4 February 2020, and you were given 30 days in which to submit a response.  When you did not provide a response, your case was submitted to the Board for consideration.
 
A review of your record shows that you entered active duty with the Marine Corps in August 1996.  You were placed on limited duty for exercise induced asthma in 1998 before a medical board eventually referred you to the Physical Evaluation Board (PEB) on 29 May 2000.  On 13 July 2000, the PEB found you unfit for continued naval service for your asthma condition but erroneously determined it existed prior to your entry into the Marine Corps.  After another medical board report determined your condition did not exist prior to your entry into the Marine Corps, the PEB found you unfit for your asthma condition and assigned a 10% disability rating.  You were discharged with severance pay on 15 January 2001 after accepting the PEB findings.  Post-discharge, the Department of Veterans Affairs (VA) assigned you a 10% rating for your asthma condition but increased the rating to 30% effective 8 August 2013. 

The Board carefully considered your arguments that you deserve to be placed on the disability retirement list with a 30% rating for your asthma condition.  You rely on the fact the VA assigned you a 30% rating to substantiate your assertion that the PEB erroneously rated you at 10%.  Unfortunately, the Board disagreed with your rationale for relief.  In making their finding, the Board substantially concurred with the advisory opinion contained in Director CORB letter 5220 CORB: 001 of 22 January 2020.  Specifically, the Board determined that the PEB appropriately assigned you a 10% rating for your asthma condition based on your required treatment at the time of your discharge.  As pointed out in the advisory opinion, in order to qualify for a 30% rating for asthma, a service member must require daily inhalational or oral bronchodilator therapy or daily inhalational ant-inflammatory medication.  In your case, the medical board report does not support a finding that your asthma condition required daily treatment.  Further, your post-discharge medical records indicate your treatment was intermittent, also documenting that you did not require daily treatment.  The Board noted that the VA assigned you a 30% rating based on a weekly number of treatments and by providing you the benefit of the doubt.  The Board did not find this evidence persuasive since the rating was assigned 12 years after your discharge and also mentions that your inhalation treatment was intermittent.  While the Board empathizes with your current medical condition, they felt compensation and treatment for your disability conditions fall outside the scope of the Department of Defense disability system, and under the purview of the VA.  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 case 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 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,