Docket No: 6142-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO FORMER MBR , XXX XX USMC Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 (2) Director CORB letter 1910 CORB: 002 of 4 February 2021 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected to establish Petitioner’s eligibility for an honorable characterization of service and change narrative reason for separation to disability or disability retirement. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 18 March 2021, and pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of the naval records, and applicable statutes, regulations, and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Petitioner entered active duty with the Marine Corps in September 2016. She was placed on limited duty for hip, groin, and lower back pain issues in July 2017. A magnetic resonance imaging (MRI) report from 3 November 2017 documented that Petitioner suffered from a small central disc protrusion of the L4-5. However, Petitioner was not recommended for another period of limited duty since her condition was not considered sufficiently impairing based on a findings that there was no neural impingement or significant narrowing of the spinal canal. She was eventually diagnosed with chronic low back pain, mild degenerative disc disease, and lumbar spondylosis of the L4-5 without significant stenosis or radiculopathy. Petitioner was recommended for continued therapy and pain management but released without limitations. c. On 29 May 2018, Petitioner was recommended for administrative separation for condition not a disability based on her continued symptoms. After being medically cleared for separation, she was notified of administrative separation processing on 5 June 2018. Her commanding officer (CO) notified her that he intended to recommend an Honorable characterization of service as part of her discharge. In fact, the CO recommended Petitioner for an Honorable characterization of service on 25 June 2018 in his letter to CO, . However, the Staff Judge Advocate (SJA) recommendation recommended Petitioner for a General characterization of service and this recommendation was adopted by CO, on 10 July 2018. As a result, Petitioner was discharged on 13 July 2018 with a General characterization of service for condition not a disability. Her final proficiency and conduct marks for her enlistment were 4.2. d. Post-discharge, the Department of Veterans Affairs (VA) assigned Petitioner a 10% rating for a lumbar strain. She was also assigned 10% ratings for right ankle and right hip conditions. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting partial relief. Specifically, the Board concluded the preponderance of the evidence supports upgrading Petitioner’s characterization of service to honorable. Marine Corps Order 1900.16 provides guidance to Commanders on when an honorable characterization of service is appropriate. It states that characterization of service will normally be honorable when a Marine earns proficiency marks of 3.0 or greater and conduct marks of 4.0 or greater. Since Petitioner earned proficiency and conduct mark greater than the recommended standard for assigning an honorable characterization of service, the Board concluded an upgrade was appropriate. The Board noted that neither the SJA recommendation nor CO, separation decision provided an explanation why Petitioner was assigned a lower characterization of service than recommended by Marine Corps Order 1900.16. It is also worth noting that the Board found no derogatory materials in Petitioner’s record to support the decision to assign her a General characterization of service. Despite the Board’s decision to grant Petitioner’s request for an upgrade to her characterization of service, the Board concluded her request for military disability benefits was not supported by the preponderance of the evidence. In order to qualify for military disability benefits through the Disability Evaluation System with a finding of unfitness, a service member must be unable to perform the duties of their office, grade, rank or rating as a result of a qualifying disability condition. Alternatively, a member may be found unfit if their disability represents a decided medical risk to the health or the member or to the welfare or safety of other members; or the member’s disability imposes unreasonable requirements on the military to maintain or protect the member. In Petitioner’s case, while it’s true she possessed a documented disability condition that created an occupational impairment, the Board agreed with the advisory opinion, enclosure (2), in the case that her impairment was insufficient to support a finding of unfitness for continued naval service. The Board reached this conclusion based on several factors. First, as explained in the advisory opinion, enclosure (2), Petitioner’s spinal issue did not rise to the level of requiring a Disability Evaluation System referral since the MRI did not show an impingement on the neural structures or significant narrowing of the spinal canal. The Board found the absence of these conditions consistent with Petitioner’s ability to continue to perform her duties in an exemplary manner that merited her assignment of a 4.2 proficiency mark. Second, as pointed out, Petitioner was able to earn a 4.2 proficiency mark throughout her enlistment. This was objective evidence to the Board that she was able to perform the duties of her office, grade, rank or rating. Therefore, absent evidence that her condition somehow created a danger to Petitioner or imposed an unreasonable requirement on the Marine Corps to care for her, the Board determined the evidence did not support a finding that she met the criteria for unfitness. Third, the Board also relied on Petitioner’s post-discharge VA rating of 10% for her back condition to conclude that her symptoms were relatively mild and did not meet the criteria for unfitness. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by changing Petitioner’s characterization of service to honorable. Petitioner will be issued a new DD Form 214 reflecting the change. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter. 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulation, Section 723.6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.