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

Docket No. 7421-19 
Ref: Signature Date 

This letter is in reference to your reconsideration request dated 25 July 2019.  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 for Correction of Naval Records, sitting in executive session, considered your application on 7 November 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 to be reinstated to the Temporary Disability Retirement List (TDRL) in order to attend a final periodic examination.  You assert that you were unable to attend a previously scheduled final periodic examination in 2010 because of the distance required to travel was too far after a recent move to a new address.  Unfortunately, the Board again determined relief was not merited in your case.  The Board found no error with the Physical Evaluation Board’s decision to administratively remove you from the TDRL based on your admission that you were aware of your final periodic examination and chose not to attend due to the distance required to travel.  Regarding whether an injustice exists, the Board noted you previously argued in an earlier application to this Board that you thought the appointment would be rescheduled after you moved.  In the Board’s opinion, you failed to exercise due diligence to attend your scheduled appointment or attempt to reschedule the appointment.  The Board considered that you were previously removed from the TDRL in 2011 for failing to attend a periodic examination and reinstated by the Marine Corps to provide you another opportunity to attend a periodic examination.  After being provided this second opportunity, you again failed to take the required actions to attend the scheduled appointments.  In the Board’s opinion, this severely reduced any mitigation offered by your loss of disability benefits and the argument that an injustice exists in your case.  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 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, 


11/12/2019