DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 
 
Docket No. 3690-21  
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. 

A three-member panel of the Board, sitting in executive session, considered your application on 5 August 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. 

A review of your record shows that you entered active duty with the Marine Corps on 30 July 1986. After refusing to enter the pool for training, you were referred to medical for a psychiatric evaluation. On 29 September 1986, you were deemed fit for full duty after it was determined that no water phobia existed. On 7 October 1986, non-judicial punishment was imposed on you for an orders violation based on your refusal to enter the pool and you were recommended for an entry-level separation. You were discharged on 10 October 1986 for entry-level performance and conduct with an uncharacterized entry-level separation. Post-discharge, you qualified for disability annuity payments from the Railroad Retirement Board based on disability conditions that included sciatic nerve pain, anxiety, reactive depression, and tinnitus. In addition, as of August 2020, the Department of Veterans Affairs (VA) has assigned you at 100% based on your individual unemployability and rated you for a number of disability conditions including migraine headaches, vertigo, and tinnitus. This Board previously denied your last request to change your narrative reason for separation to disability on 4 February 2021. 

The Board carefully considered your arguments that you deserve a disability discharge based on your post-discharge disability diagnoses. You argue that you were let into the Marine Corps 

despite disclosing that you did not know how to swim and attempted to learn for three days. You believe that you qualify for liberal consideration based on your mental health conditions and require a disability discharge to qualify for a VA loan. Unfortunately, the Board disagreed with your rationale for relief. 

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 determined 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 diagnosed with multiple disability conditions in the years after your discharge from the Marine Corps and rated by the VA for service-connected disabilities, the Board did not find this evidence as persuasive as the 29 September 1986 medical evaluation. That evaluation determined you were fit for full duty approximately 11 days prior to your discharge. The Board determined the 29 September 1986 medical evidence should be given more weight than your post-discharge medical evidence since it was issued contemporaneously with your active duty service and, therefore, more reliable as evidence in determining your fitness for active duty on 10 October 1986. Based on that determination, the Board concluded the preponderance of the evidence supports a finding that you were fit for active duty at the time of your discharge and that your assigned narrative reason for separation remains appropriate. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record. 

Regarding your request for liberal consideration of the evidence in your case, the Board determined liberal consideration policy did not apply since you are asking to be found unfit for continued naval service in order to obtain a disability discharge. A federal court concluded that the liberal consideration policies contained in the Hagel and Kurta Memoranda do not apply to unfitness or disability retirement determinations by this Board. 

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, 
8/9/2021 

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