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

Docket No. 2999-20 
Ref: Signature Date 

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 4 June 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 January 2000 and were discharged with severance pay based on a Physical Evaluation Board (PEB) rating of less than 30% for your unfitting condition.   

The Board carefully considered your arguments that you deserve to be placed on the disability retirement list based on a change to your PEB record.  You assert that you were unfit for an opioid addiction secondary to your unfitting knee condition.  In your opinion, you would have qualified for placement on the disability retirement list had the PEB considered your opioid addiction and assigned you a disability rating.  Unfortunately, the Board disagreed with your rationale for relief. SECAVINST 1850.4E states that a service member is not eligible to receive military disability benefits if a condition results from misconduct.  The instruction further directs unfitness attributable to habit-forming drugs or alcohol to be categorized as a condition resulting from misconduct.  Therefore, the Board concluded your opioid addiction, even if it was unfitting for continued naval service, would not have qualified as a compensable disability condition in the Disability Evaluation System.  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.   

Sincerely, 

6/9/2020