Docket No. 1442-20
Ref: Signature Date


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 relevant portions of your naval record and your application, 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. 
 
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 10 September 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 and applicable statutes, regulations and policies.   
 
A review of your record shows that you entered active duty with the Marine Corps in September 1996.  After suffering a cerebral artery embolic stroke, a medical board referred you to the Physical Evaluation Board (PEB) for Status Post Large Right Middle Cerebral Artery Embolic Stroke.  The PEB found you unfit for continued naval service in April 2007 for your referred condition and assigned you a 30% rating.  As a result, you were transferred to the Temporary Disability Retirement List on 31 July 2007.  After initially retaining you on the TDRL in September 2009, the PEB again considered your case in December 2010 after a periodic examination.  The PEB concluded you were unfit for continued naval service and recommended your transfer to the Permanent Disability Retirement List with a 40% rating.  However, after you requested to be found fit and reconsidering their findings, the PEB found you fit to return to active duty in January 2011.  You were notified by Commandant, U.S. Marine Corps in February 2012 that you may return to active duty if you responded to the notification letter.  After you failed to respond in a timely manner, you were removed from the TDRL and discharged from the Marine Corps on 16 July 2012.  
 
The Board carefully considered your arguments that you should be returned to the disability retirement list.  You provided evidence that you were experiencing personal difficulties due to a marital dispute and homelessness at the time you were sent notification of your return to the Marine Corps.  Additionally, you assert that you were not prepared to return to active duty and made a misjudgment when you requested to be found fit.  Unfortunately, the Board disagreed with your rationale for relief.   
 
First, the Board found no error with the PEB findings in your case.  Your PEB record shows that the panel considered your TDRL medical evidence and concluded a discrepancy existed between your physical and neurological examinations.  Your periodic physical examination noted you had improved significantly and met retention standards for the Marine Corps.  This medical evidence supports a finding that the PEB considered the medical evidence in a light most favorable to you in concluding you were fit to return to active duty.  In doing so, they were able to grant your request to be returned the active duty.  The Board also noted that you accepted the PEB findings on 6 January 2011.  Based on these factors, the Board determined that the PEB findings in your case were supported by the evidence and not erroneous. 
 
Second, the Board did not find sufficient injustice in your case to merit a change to your PEB record.  As previously discussed, the PEB changed its December 2010 findings after you requested to be returned to active duty; a change you accepted in January 2011.  Therefore, the Board determined that the PEB acted as you requested at the time and the factors that prevented you from returning to the Marine Corps were outside the control of the PEB or Marine Corps.  Since you were found fit based on the medical evidence and your request to return to active duty, the Board found insufficient injustice exists to support a change to unfitness based on the personal circumstances you experienced after the PEB findings were made.  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 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, 


9/15/2020

Deputy Director