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

Docket No. 5596-20
Ref: Signature Date

This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  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 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 27 May 2021.  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 Senior Medical Advisor CORB letter 1910 CORB: 002 of 30 March 2021 and Director CORB letter 1910 CORB: 001 of 9 April 2021; 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 June 2009.  During a deployment to, you suffered a Grade 3 concussion after being exposed to an Improvised Explosive Device explosion on 2 March 2010.  After receiving initial treatment, you were transferred back to the continental United States for outpatient treatment.  At this time, your condition was upgraded to Not Seriously Injured.  On 29 November 2012, you were discharged with severance pay after a Physical Evaluation Board (PEB) determination that you were unfit with a 10% disability rating.  Post-discharge, you were rated by the Department of Veterans Affairs (VA) for a number of disability conditions including Anxiety Disorder with Post-Traumatic Stress Disorder (30%) and Traumatic Brain Injury (TBI) (0%). 

The Board carefully considered your arguments that you deserve to be placed on the Temporary Disability Retirement List based on post-discharge symptoms from your TBI.  You assert that you quality of life continued to decline after your discharge from the Marine Corps and you were diagnosed with Major Depressive Disorder in 2019. Unfortunately, the Board disagreed with your rationale for relief. In making their findings, the Board substantially concurred with the advisory opinions in your case. Specifically, the Board agreed that the preponderance of the evidence does not support changing your PEB findings to place you on the disability retirement list. Despite your post-discharge TBI symptoms that eventually led to a Major Depressive Disorder diagnosis, the Board found insufficient evidence that your mental health condition at the time of your discharge was sufficiently impairing to merit the relief you seek. The Board relied on medical evidence that your TBI was not considered a serious injury upon your return to the United States and the fact the VA rated it at 0% upon your discharge. As pointed out in the advisory opinions, the fact your condition worsened after your release from active duty offers limited probative value on the issue of your fitness at the time of your discharge. Similarly, your assigned VA ratings are limited in probative value on the issue of unfitness 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. So 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. 

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. 

5/29/2021 
Deputy Director