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

Docket No. 6226-20  
Ref: Signature Date  
 

Dear , 

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 10 June 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 21 April 2021 and Director CORB letter 1910 CORB: 001 of 29 April 2021 along with your response to the opinions. 

A review of your record shows that you entered active duty with the Marine Corps Reserve in June 1999. After completing your initial training pipeline and being released from active duty, you served several periods of extended active duty that included deployments in support of Operations Enduring Freedom and Iraqi Freedom. It was during your deployment to      that you fractured your right ankle on 20 November 2009. This injury resulted in your referral to the Physical Evaluation Board (PEB) and a finding of unfitness for continued naval service on 24 August 2011. You were assigned a 10% disability rating consistent with the proposed Department of Veterans Affairs (VA) rating and discharged on 29 April 2012 with severance pay. In addition to your PEB referred right ankle condition, the VA also proposed service connected disability ratings for Post-Traumatic Stress Disorder (PTSD) and right knee joint effusion. In 2014, the VA increased your PTSD rating from 30% to 50% and assigned your two separate disability ratings of 10% and 20% for your right knee conditions. You provided witness statements that document that you continue to suffer from symptoms from your service connected disability conditions. 

The Board carefully considered your arguments that you deserve to be placed on the disability retirement list. You assert the PEB failed to properly evaluate you for your PTSD and knee condition at the time of your discharge from the Marine Corps Reserve. 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 determined that the preponderance of the evidence did not support a finding that you were unfit at the time of your discharge from the Marine Corps Reserve due to PTSD or your knee conditions. 

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 your case, the Board determined that the evidence did not support a finding of unfitness for any other disability condition other than your right ankle condition. As pointed out in the advisory opinions, there was an absence of sufficient objective evidence contemporary with your active duty service that supported a finding that you were unfit for PTSD or a knee condition. While your non-medical assessment mentioned your mental health issues, the focus of the assessment was your inability to deploy or take the physical fitness tests due to your ankle issue. The Board could find no other active duty record that your knee or PTSD conditions created an occupational impairment substantial enough to support a finding that they prevented you from performing the duties of your office, grade, rank or rating. 

Additionally, the fact none of your medical providers felt your PTSD or knee condition merited a referral to the PEB was considered as further evidence neither of these conditions were unfitting at the time of your discharge. The fact you received a disability rating from the VA for both conditions did not persuade the Board that these conditions were unfitting 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. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record. 

The Board determined that your personal appearance, with or without counsel, would not materially add to their 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 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, 
6/13/2021 

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