DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 7074-20 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 16 September 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 opinion contained in Director CORB letter 5220 CORB: 002 of 16 June 2021; a copy of which was previously provided to you for comment. A review of your record shows that you entered service with the Marine Corps Reserve in July 1989. After commencing active duty, you were placed on limited duty for a herniated disc in your lumbar spine on 14 August 2006. You were later returned to full duty status on 13 August 2007. However, a medical board referred you to the Physical Evaluation Board (PEB) for Sleep Apnea in January 2009. The non-medical assessment by your command noted that you were out of weight standards and had not passed a Physical Fitness Test (PFT) since 2005. Despite your inability to pass the PFT, the PEB found you fit for continued active duty on 8 May 2009 and affirmed their findings upon reconsideration. After you accepted the PEB findings in your case, you were released from active duty and transferred to the Retire Reserve list effective 30 November 2009. As of 16 July 2020, the Department of Veterans Affairs (VA) has rated you for a number of service connected disability conditions including Sleep Apnea, Intervertebral Disc Syndrome of the Lumbar Spine, and Bilateral Plantar Fasciitis. The Board carefully considered your arguments that you deserve to be placed on the disability retirement list. You argue that you were forced to separate from active duty despite being on limited duty for a herniated disc in your back and recovering from plantar fasciitis surgery. You also point out that you were suffering from Sleep Apnea at the time of your discharge and unable to pass the PFT. Unfortunately, the Board disagreed with your rationale for relief. In making their findings, the Board substantially concurred with the advisory opinions in the 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 reviewing the evidence in your case, the Board concluded the preponderance of the evidence does not support a finding that you met any of the criteria for unfitness. Specifically, the Board noted that you were ranked as an “exceptionally qualified Marine” ahead of 21 other Marines in your peer group on your 30 June 2009 fitness report; a report issued several months prior to your release from active duty. This was strong objective evidence to the Board that you were fully capable of performing the duties of your office, grade, rank or rating despite the existence of your disability conditions that were later rated by the VA. While the Board considered the fact you were unable to pass the PFT at the time of your discharge, the Board noted that the disability regulations state that an inability to pass the PFT shall not be the sole basis for a finding of unfitness. Therefore, based on your documented superior performance as a Gunnery Sergeant, the Board determined that the PEB findings in your case was supported by the preponderance of evidence. The Board found no evidence that you were forced to leave active duty as a result of your back condition or any other disability condition. The Board noted that you were assigned a RE-1A reenlistment code consistent with the PEB finding that you were fit for continued naval service. The Board also considered your VA ratings in making this determination. However, they noted that 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. As a result, based on your fitness report that documented your ability to perform your duties as an E-7 in the Marine Corps near the time of your discharge, the Board concluded your VA ratings were not indicative of your fitness for continued naval service at the time of your release from active duty. 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, 9/17/2021 Deputy Director