Docket No. 
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 3 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.  In addition, the Board considered the advisory opinions contained in Psychiatric Advisor CORB letter 1910 CORB: 002 of 29 June 2020 and Director CORB letter 1910 CORB: 001 of 15 July 2020; copies of which were previously provided to you for comment.  
 
A review of your record shows that you entered active duty with the Marine Corps in January 2002.  You deployed to Iraq in 2003, 2004, and 2006 in support of combat operations and later screened positive for possible Post-Traumatic Stress Disorder (PTSD) in 2010.  You were also screened for possible Traumatic Brain Injury (TBI) during this time and referred to the Physical Evaluation Board (PEB) for Idiopathic Gastroparesis and Dyspepsia.  Throughout 2010-2011, you were evaluated for possible TBI and PTSD on multiple occasions without a diagnosis for either condition.  Meanwhile, the PEB found you unfit for Idiopathic Gastroparesis and assigned you the proposed Department of Veterans Affairs (VA) rating of 10%.  You were discharged with severance pay on 28 February 2012 pursuant to your PEB findings. 
 
The Board carefully considered your arguments that you were unfit for continued naval service due to PTSD and erroneously rated by the PEB for your Idiopathic Gastroparesis.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinions in your case. 
 
First, the Board agreed with the advisory opinions that the PEB had no discretion to deviate from the VA proposed rating for your Idiopathic Gastroparesis.  The record shows the VA proposed a 10% rating for the condition on 29 August 2011 and this rating was adopted by the PEB as required by DOD regulations.  Absent evidence that the VA determined that its proposed rating was issued in error, the Board concluded that the PEB made no error in assigning you a 10% disability rating for your Idiopathic Gastroparesis.   
 
Second, the Board concluded the preponderance of the evidence does not support a finding that you were unfit for continued naval service due to PTSD at the time of your discharge from the Marine Corps.  The Board considered your mental health examinations leading up to your discharge that determined that you did not meet the criteria for PTSD and were psychiatrically fit for duty.  This includes the 10 October 2011 mental health examination that was conducted approximately four months prior to your discharge.  Since unfitness is based on whether a service member is able to perform the duties of their office, grade, rank or rating, the Board concluded it lacked evidence to find you unfit since you were deemed psychiatrically fit for duty.    
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 issues 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.   
 
Sincerely, 

9/8/2020


Executive Director