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

Docket No. 6559-20  
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 6 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 Medical/Psychiatric Advisor CORB letter 1910 CORB: 002 of 10 February 2021 and Director CORB letter 1910 CORB: 001 of 24 February 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 August 2002. You deployed to  on three separate occasions in 2003, 2004, and 2006. Shortly after returning from your last deployment, despite reporting trouble falling asleep and back pain, you were medically cleared for separation on 23 October 2006. On 25 November 2006, you were discharged at the completion of your required active service with a RE-1A reenlistment code. In 2008, you entered the  National Guard. As part of your entry into the National Guard, you were medically screened on 30 January 2008 and reported no mental health or neurological symptoms. On 8 May 2008, you were again medically screened and determined to be fit for duty. In 2017, the Department of Veterans Affairs (VA) rated your for Traumatic Brain Injury (TBI), Post-Traumatic Stress Disorder (PTSD), and Headaches associated with your TBI. VA records document that you have been employed as a manager at a firearm holster company since 2014. 

The Board carefully considered your arguments that you should be placed on the disability retirement list based on cognitive issues resulting from your TBI, PTSD and headaches. You assert that you require daily assistance due to your disability conditions and rely on the VA’s determination that your conditions are service connected. Unfortunately, the Board disagreed with your rationale for relief. In making their findings, the Board substantially concurred with the advisory opinions in your case. 

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 found no diagnosis for TBI, PTSD, or headaches in your military record nor any evidence that you suffered from an occupational impairment due to those conditions. Further, the Board agreed with the advisory opinions that your post-Marine Corps physical examination in 2008 twice determined you were fit for duty and service in the National Guard. In the Board’s opinion, this was strong evidence that you were fit for active duty at the time of your discharge from the Marine Corps since you later qualified for service in the National Guard. The Board also noted, consistent with the two 2008 physical examination results, that your separation physical cleared you for discharge on 23 October 2006. The Manual of the Medical Department Chapter 15-20 requires separation examinations and evaluations for active duty members and states “comprehensive evaluations are conducted for the purposes of ensuring that Service members have not developed any medical conditions while in receipt of base pay that might constitute a disability that should be processed by the Physical Evaluation Board (PEB) and to ensure Servicemembers are physically qualified for recall to additional periods of active duty. 

Thus, the standards for being physically qualified to separate are the same as those being qualified to continue active duty Service … .” Therefore, based on the totality of the evidence, the Board concluded the preponderance of the evidence supports a finding that you were, more likely than not, fit for active duty at the time of your discharge from the Marine Corps. 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. 

Sincerely, 
5/14/2021 

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