Dear ,  
 
This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  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 was 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 3 December 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.   
 
A review of your record shows that you entered active duty with the Marine Corps in April 2003.  You deployed twice in support of Operation Iraqi Freedom in 2005 and 2006 before being released from active duty at the end of your obligated active service on 13 April 2007.  Subsequently, you transitioned to the Marine Corps Reserve until your discharge at the end of your obligated service on 7 November 2010.  Prior to your discharge, the Department of Veterans Affairs (VA) assigned you a disability rating of 20% on 5 October 2010 for Tinnitus and Traumatic Brain Injury.  On 20 June 2018, the VA added additional disability ratings for migraine headaches (50%), Patellofemoral Pain Syndrome (10%), and Post-Traumatic Stress Disorder (70%).   
 
The Board carefully considered your arguments that you deserve to be placed on the disability retirement list and have your DD Form 214 amended to reflect paygrade E5.  Unfortunately, the Board disagreed with your rationale for relief.   
 
First, the Board determined your paygrade on your DD Form 214 is correct.  You were released from active duty on 13 April 2007 at which time your paygrade was E4.  Your record documents that you were promoted to E5 on 1 October 2007 after you transitioned to the Marine Corps Reserve.  Since your DD Form 214 was issued to capture your period of active duty ending in April 2007, the Board concluded it appropriately reflects your paygrade as E4. 
 
Second, the Board concluded the preponderance of the evidence does not support your placement on the disability retirement list.  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 considered several pieces of evidence in reaching their conclusion that you did not meet the criteria for unfitness at the time of your release from active duty.  One, there was no indication in your record that you were unable to perform your assigned military duties as a result of a disability condition.  Your performance traits were 4.4 during your enlistment which indicated you were performing above fleet standards for your paygrade and MOS.  Two, you were promoted after your release from active duty.  This documents the fact you were performing your duties sufficiently at the time of your release from active duty to merit a promotion despite the existence of any disability conditions.  The fact your promotion occurred within months after your release from active duty led the Board to conclude that you were, more likely than not, performing at a high level at the time of your release from active duty.  Three, you were medically cleared for release from active duty.  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 … .”  Four, your last fitness report ending on 16 May 2010 documents that you scored a first class Physical Fitness Test (PFT) during that reporting period.  This led the Board to conclude, despite any disability conditions, you were sufficiently fit to perform at the highest levels on the PFT.  When considering these three factors in combination, the Board concluded that insufficient evidence exists to support a finding that you were unfit for continued naval service at the time of your release from active duty.  While the Board considered your VA ratings for various service connected disability conditions, they did not find them persuasive on the issue of unfitness 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.   
 
It is regretted that the circumstances of your case are such that favorable action cannot be taken.  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,