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.      
 
A three-member panel of the Board, sitting in executive session, considered your application on 19 November 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 and applicable statutes, regulations and policies.    
 
The Board carefully considered your arguments that you deserve to be placed on the disability retirement list with her unfitting conditions classified as combat-related injuries or alternatively be referred to the Disability Evaluation System.  Additionally, you assert that your non-judicial punishment should be set aside with restoration of rank and forfeitures.  Unfortunately, the Board disagreed with your rationale for relief. 
 
First, the Board again concluded that the preponderance of the evidence does not support setting aside your non-judicial punishment from 2 April 2004.  The Board weighed the credibility of the accusing Marine against your assertion of innocence in making this finding.  In reviewing the evidence, the Board noted that the accusing Marine’s statement that you sold him a controlled substance was corroborated by another witness.  Further, the Board considered the fact the accusing Marine placed himself in further criminal jeopardy by incriminating himself of a false official statement when he admitted his first statement to criminal investigators was partially false.  These two factors led the Board to find his statement to be more credible than your assertion of innocence.  As a result, the Board determined that your non-judicial punishment was supported by the preponderance of the evidence.  Therefore, the Board found no basis to set aside the non-judicial punishment, reinstate your paygrade, or restore forfeitures.   
 
Second, the Board affirms its previous decision regarding your disability conditions.  Specifically, the Board concluded that no change to its 20% rating for your Post-Traumatic Syncope is merited.  In making this finding, the Board again concurred with the 25 March 2019 advisory opinion issued by Senior Medical Advisor, Secretary of the Navy Council of Review Boards along with the endorsement from Director, Secretary of the Navy, Council of Review Boards.  This opinion was issued as part of your application that was reconsidered.  The Board agreed with the opinion’s statement that while you suffered from a number of disability conditions, other than Post-Traumatic Syncope, that were later rated by the Department of Veterans Affairs, there is no medical documentation that these conditions independently, or in combination, prevented you from performing duties associated with your MOS.  Despite witness statements that described the negative impact of your other disability condition, the Board noted that your proficiency and conduct marks of 4.6 and 4.4 were well above fleet standards despite your symptoms.  This was strong evidence that you were able to perform the duties of your office, grade, rank or rating despite the existence of the other disability conditions.  Despite your ability to perform your duties, your syncope condition effectively prevented you from performing Motor Transport Operator duties since it created a decided medical risk to your health and safety as well as to the safety of other members should you suffer a syncope episode while driving.  The Board determined the preponderance of the evidence did not show a similar danger or medical risk for migraines, Post-Traumatic Stress Disorder, or Traumatic Brain Injury and the performance of your duties.      
 
Third, the Board concluded it had sufficient evidence to adjudicate a proper disability rating without a referral to Disability Evaluation System.  The Board considered the fact it had access to an advisory opinion from Director, Secretary of the Navy, Council of Review Boards in making its findings.  Since the Director acts as the executive agent for the Secretary of the Navy in all Physical Evaluation Board matters, the Board concluded his opinion regarding findings of unfitness and assignment of a proper disability rating was sufficient evidence to properly adjudicate your disability claim.  Additionally, the Board considered the fact you were discharged in 2004.  Therefore, a referral to the Disability Evaluation System in 2020 would not be an accurate assessment of your disability conditions as of 2004.  In the Board’s opinion, it was more appropriate to conduct a medical documentary review of your 2004 conditions and such a review was accomplished via the advisory opinion.  While the Board understood the nature of a documentary review does not offer the due process associated with a Disability Evaluation System review, the Board took into consideration that you were not entitled to disability processing based on your misconduct separation and Other than Honorable characterization service; misconduct that the Board continues to find supported by the evidence.  Therefore, they determined that no error or injustice exists in denying you a referral to the Disability Evaluation System when an alternative means for accurately adjudicating your case was utilized by the Board.   
 
Fourth, based on the Board’s finding that your disability conditions do not merit placement on the disability retirement list, the Board concluded you do not qualify for Combat Related Special Compensation.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record. 
 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will 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.  
 
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,