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

Docket No. 3380-20
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 11 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 navalrecord and applicable statutes, regulations and policies.

A review of your record shows that you entered active duty with the Marine Corps in April 2003.  You were diagnosed with obstructive sleep apnea and placed on limited duty in March 2006 to restrict you from deploying.  Your limited duty was extended in September 2009 until you were found fit to return to full duty on 30 January 2007.  You were subsequently discharged on 7 April 2007 from the Marine Corps at the end of your obligated active service.  You were assigned a RE-3P reentry code based on your obstructive sleep apnea condition.  Post-discharge, the Department of Veterans Affairs rated you’re acombined 60% in January2014.  You combined rating was increased to 90% later that same year.  You later applied to the Physical Disability Board of Review and were deemed a non-covered individual since you were not medically separated with a combined rating of 20% or less.  However, the letter also stated you were separated for a physical disability. 

The Board carefully considered your arguments that you deserve to be placed on the disability retirement list for your obstructive sleep apnea.  Unfortunately, the Board disagreed with your rationale for relief.  In order to find a service member unfit for continued naval service, there must be evidence that the member is unable to perform the duties of their office, grade, rank or rating.  In other words, the disability condition must create a significant occupational impairment sufficient to prevent the member from performing assigned military duties. In your case, the Board notes no such impairment to your ability to perform your duties except for your inability to deploy.  Your discharge fitness report notes positive performance comments and a recommendation for promotion.  Additionally, your enlistment professional trait average was 4.5.  Both of these factors led the Board to conclude you were performing your assigned duties above fleet standards for your paygrade and MOS.  Additionally, the Board considered the fact you were medically cleared for full duty on 30 January 2007, approximately two months prior to your release from active duty.  Finally, the Board noted that your separation counselling documented that you intended to work in a Texas Port Authority upon your discharge.  When the evidence was considered as a whole, the Board reached the conclusion that the preponderance of the evidence does not support a finding that you were unfit for continued naval service at the time of your discharge.
  
Regarding your argument about your restrictions from deployment, the Board did not find it persuasive since SECNAVINST 1850.4e states the “inability to meet screening criteria for a specific assignment or administrative requirement; i.e., deployment, overseas or sea duty assignment, or participation in PRT/PFT cycle, does not justify referral” to the Physical Evaluation Board.  Further, the instruction states “nondeployability shall be one of many factors considered by the PEB in determining Fitness for continued naval service, non-deployability alone will not normally constitute a basis for a finding of Unfit to continue naval service.”  The Board concluded that your primary reason for being placed on limited duty for your condition was to restrict your deployment.  Since non-deployability alone is not normally a basis for a finding of unfitness, the Board determined the preponderance of the evidence did not support your referral to the Disability Evaluation System.  Additionally, as previously mentioned, you were returned to full duty status on 30 January 2007 which indicated to the Board your medical provider also did not feel your obstructive sleep apnea merited a referral to the Disability Evaluation System. 

The Board also considered your argument regarding the RE-3P reentry code assigned to you upon your discharge.  Again, the Board did not find this evidence persuasive on the issue of unfitness.  Reentry codes are assigned based on amember’s eligibility to reenlist and not necessarily based on the reason for separation.  Therefore, a RE-3P reentry code can be assigned at the end of obligated active service or for discharges involving a medical condition not considered a disability.  So the fact the Marine Corps determined you should be assigned a RE­3P code based on your sleep apnea and inability to deploy, in theBoard’s opinion, did not equate to a finding of unfitness. 
 
Finally, the Board considered your post-discharge VA ratings.  However, the Board concluded these were not probative on the issue of unfitness for continued naval service since eligibility for compensation and pension disability ratings by the VA is tied to the establishment of service connection and is manifestation-based without a requirement that unfitness for military duty be demonstrated. 

While the Board empathizes with your current medical condition, they felt compensation and treatment for your disability conditions fall outside the scope of the Department of Defense disability system and under the purview of the VA.  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,