Docket No: 4017-20 
Ref: Signature Date 

 
Dear  : 
 
This letter is in reference to your reconsideration request.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been denied.  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 relevant portions of your naval record and your application, the 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 application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 28 July 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, as well as applicable statutes, regulations, and policies. 
 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its 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. 
 
You enlisted in the Marine Corps Reserve, and served in the reserve component from 19 April 1991 to 29 May 1991.  You commenced a period of active duty in the Marine Corps on 20 May 1991, which lasted until 20 December 2006, when you were discharged with an honorable characterization of service.  You returned to the reserve component in 2007, and remained in the reserves through 4 October 2012.   
 
In April 2003, you were on active duty and serving with  ,  you suffered a traumatic brain injury (TBI).   
 
Following your discharge from the Marine Corps, the Department of Veterans Affairs (VA) granted you a disability rating of 80%, to include a rating for a service connected TBI.  In your application, you state that you are now 100% disabled through the VA. 
 
In your current reconsideration to the Board, you again ask for the issuance of a Purple Heart, promotion to the grade of gunnery sergeant, and medical retirement.  Your request for a Purple Heart was previously considered and denied (See Docket No:  ); and your requests for promotion and medical retirement were also previously considered and denied (See Docket No:  ). 
 
In your request for reconsideration, you state that you were involuntarily discharged on 21 December 2006, for undiagnosed injuries following combat Operations in Iraq.  You provide a copy of your 22 December 2006 Chronological Record of Medical Care entry, pages from your DD Form 2796 (PDHA), which notes that you self-reported exposure to various stimuli and stressors during deployment, command comments, and documents from the VA.  Your submission also includes a 1 November 2019 rebuttal to a previously considered Advisory Opinion (AO) considered under Docket No:  .   
 
The Board again reviewed your request for the issuance of the Purple Heart, and substantively concurred with the previous applicable AO from the President, Navy Department Board of Decorations and Medals, dated 16 October 2019, and with the previous Board’s rational in denying your request for the Purple Heart.  The current Board noted that both the AO and the previous Board (Docket No:  ) considered that the Purple Heart may be awarded for cases involving military TBIs if a Service member suffers a loss of consciousness of any duration as a result of a diagnosed military TBI/concussion, or when the persistent signs, symptoms, or findings of functional impairment from a diagnosed military TBI/concussion result in a medical officer disposition of “not fit for full duty” for a period greater than 48 hours.  Further, the AO and the prior Board noted that the medical officer’s disposition must be made within seven (7) days of the concussive event as evidenced by official entries into the Service member’s medical record.  The AO considered that you submitted your request for the Purple Heart to your chain of command, U.S. Marine Corps Forces Central Command, which denied the request because no military TBI injury was diagnosed within the first 7 days of the engagement on 5 April 2003.  The AO also noted that in 2017, you submitted your request to Headquarters, U.S. Marine Corps Military Awards Branch (MMMA) for adjudication.  MMMA sought further information from you, which MMMA indicated that you did not provide.  MMMA closed your case and effectively denied your request.  The AO and the previous Board concluded that the denials were not arbitrary or capricious, and recommended that your request be denied.  The current Board again determined that there is insufficient evidence to determine that the injuries you contend you sustained on 5 April 2003 meet the criteria to merit the issuance of the Purple Heart. 
 
With respect to your request for promotion, the current Board concurred with the rational in Docket No:  , where the previous Board found that your record does not support that you were qualified for promotion to a grade higher than E-6, and that you did not provide sufficient evidence to establish an entitlement to advancement to a higher rank/grade. 
 
The Board, in its review of your entire application, again carefully considered whether you were entitled to a medical retirement or a medical separation, and took into consideration your allegation that you were wrongfully separated from active duty on 20 December 2006, without a final physical.  The Board noted that following your separation from active duty, you continued to serve the Marine Corps in a Reserve capacity.  Again, the Board noted that pursuant to SECNAVINST 1850.4 series, a service member is entitled to a medical separation or medical retirement if the member is unfit for continued duty.  A determination of Fitness for continued duty is made based on evidence that establishes a member is reasonably able to perform the duties of his or her office, grade, rank or rating.  Furthermore, SECNAVINST 1850.4 series states that within a finding of Fit to continue naval service is the understanding that the mere presence of diagnosis is not synonymous with a disability.  The Board noted that your fitness reports during your active duty service establish that you were a valuable and contributing member of the Marine Corps, and that you were performing your duties satisfactorily.  Furthermore, after your separation from active duty, you continued to serve successfully in the Marine Corps Reserve, indicating that you were fit for duty until your discharge in 2012.  The Board found that you did not provide sufficient evidence to establish that the Department of the Navy failed to provide an appropriate separation physical in 2006.  However, the Board concluded that even if you were not properly medically screened before leaving active duty 2006, the error appears to have been harmless as you were able to continue to fulfill your military duties.  Also, your record indicates that after your discharge from active duty, you were in a Reserve status and you performed Annual Training (AT) in 2007 and 2008.  The Board noted that qualification for AT required you to meet expected Medical Readiness standards and that you likely underwent routine Medical evaluations during your time in the Reserve, which presumably would have identified any medical conditions or disabilities that rendered you unfit for duty.  Accordingly, the Board concluded that even taking into consideration your claim of undiagnosed injuries and lack of final physical in 2006, you are not entitled to a medical retirement. 
 
The Board against considered the VA’s 100% disability rating, but noted that a service connected disability rating from the VA does not establish unfitness for military duty.  Taking into account the evidence of your record and your honorable completion of your active duty service and your affiliation with the Marine Corps Reserve (with performance of periods of AT between 2006 and your separation in 2012), the Board concluded that you were not entitled to a medical separation or retirement.  Furthermore, the Board found that your record does not establish service credit sufficient for a standard military retirement from either active duty or the reserve component. 

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,