Dear   
 
This 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 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 October 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.   

A review of your record shows you entered active duty with the Marine Corps in February 2013.  On 1 October 2016, you were involved in a motorcycle accident when you struck a parked car while travelling at a high rate of speed.  You suffered Traumatic Brain Injury (TBI) due to your accident and the resulting investigation determined you possessed a .165 blood alcohol content at the time of your accident.  Based on your actions, your chain of command conducted a line of duty investigation and concluded that your injuries were not incurred in the line of duty due to your misconduct.  As a result, when your case was processed through the Disability Evaluation System, the Physical Evaluation Board (PEB) concluded you were unfit for continued naval service due to severe TBI but that your unfitting condition was unratable due to a finding that your disability was not incurred in the line of duty due to misconduct or neglect.  Your Petition for Relief was denied by Director CORB on 9 February 2018 resulting in your discharge from the Marine Corps on 30 October 2018 due to disability, not in the line of duty.  Post-discharge, the Department of Veterans Affairs (VA) denied you a service connection for residual TBI based on their finding that your TBI was incurred as a result of willful misconduct. 
 
The Board carefully considered your arguments that you deserve a change to your line of duty determination to allow you to qualify for VA benefits related to your TBI condition. Unfortunately, the Board concluded that the preponderance of the evidence does not support the relief you requested.  First, the Board determined there was no error with the PEB findings in your case.  The police report and witness statements provide substantial evidence that you were highly intoxicated when you chose to operate your motorcycle at a high rate of speed in the middle of the night.  Therefore, the Board agreed with your chain of command and the PEB that your resulting injuries from the accident were not incurred in the line of duty due to your misconduct.  Second, the Board considered whether a sufficient injustice exists to change your line of duty determination based on the extent of your injuries and inability to qualify for VA benefits.  In the end, the Board concluded that insufficient evidence of injustice exists to change your line of duty determination.  While the Board was sympathetic to your current situation, they felt that your case was no different than other service members who suffered serious injuries due to their own misconduct.  The reason the line of duty determination exists is to prevent service members such as yourself from benefiting from acts of misconduct that result in disability conditions.  Therefore, the Board did not find your residual injuries and inability to obtain VA benefits for those injuries sufficient justification to grant you military disability benefits, something that would occur if they changed your line of duty determination.  In making their findings, the Board noted you were receiving some VA benefits including compensation.  In their opinion, this lessened the mitigation created by your residual TBI condition and lack of benefits related to that condition.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a 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 case are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon 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.