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

Docket No. 7291-20
Ref: Signature Date

MR 

Dear Mr.   
 
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 23 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 opinions contained in Senior Medical Advisor CORB letter 5220 CORB: 002 of 10 June 2021 and Director CORB letter 5220 CORB: 001 of 15 June 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 May 2002.  During your period of active duty, you deployed to Iraq and Afghanistan multiple times between 2007 and 2014.  You were also treated for multiple disability conditions during your active duty service including a mental health condition starting in 2012.  On 6 October 2014, you were medically cleared for separation prior to your Voluntary Separation Pay (VSP) discharge made pursuant your request.  Post-discharge, you struggled with mental health issues that resulted in your hospitalization in 2018 with diagnoses of Post-Traumatic Stress Disorder and Major Depressive Disorder.  As of 11 September 2020, the Department of Veterans Affairs (VA) has assigned you ratings for multiple service connected disability conditions including Traumatic Brain Injury (TBI) and PTSD (70%). 
 
The Board carefully considered your arguments that you need to be returned to active duty in order for a medical review to be conducted to allow for your placement on the disability retirement list.  You claim you were unfit at the time of your discharge from the Marine Corps for a number of disability conditions for which you received treatment while on active duty.  You provided evidence that you were struggling with your chain of command and were mistreated.  In addition, you assert that you went against medical advice in requesting and accepting your VSP discharge.  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 reviewing your record, the Board concluded the preponderance of the evidence does not support a finding that you met any of the criteria for unfitness at the time of your discharge.  Despite evidence that you were treated for multiple disability conditions during your active duty service; the Board noted that you also continued to perform your duties satisfactorily and deployed to combat zones successfully through the end of your active duty service.  In the Board’s opinion, despite your claims of unfitness, this shows that your disability conditions did not create a substantial enough occupational impairment to prevent you from performing the duties of your office, grade, rank or rating.  In making this finding, the Board also relied on your separation physical that medically cleared you for separation.  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 … .”  As pointed out in the advisory opinion, despite the existence of your disability conditions, none of your medical providers deemed them sufficiently impairing to merit a referral to a medical board or the Physical Evaluation Board.  When considering the evidence in total, the Board determined that the preponderance of the evidence does not support a finding that you were unfit for continued naval service at the time of your discharge for any of your claimed disability condition.  While the Board also noted that your mental health condition deteriorated significantly years after your discharge from the Marine Corps and empathizes with your current medical condition, they felt compensation and treatment for your disability conditions fall outside the scope of the Department of Defense disability system and under the purview of the VA.  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, 
9/28/2021
Deputy Director