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

Docket No:  9205-17                                                            
Ref:        Signature date 


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 the entire record, the 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 application on its merits.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 28 January 2019.  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. 

You enlisted in the Marine Corps and began a period of active duty on 13 April 1970.  On 15 October 1970, you were convicted by summary court-martial (SCM) of 45 days of unauthorized absence (UA).  On 2 November 1970, you began a period of UA.  On 8 November 1970, your record states that you received a gunshot wound in the lower spine as a result of a fight with an unidentified person, in                             .  Additionally, it was reported that you On 2 February 1971, a Medical Board Report primary diagnosis was “wound, gunshot, spine, with resulting paraplegia, #   .”  Subsequently, a line of duty (LOD) determination found that your medical condition was not due to your own misconduct, you were in the line of duty, and referred your case to a physical evaluation board (PEB).  At that time, it was recommended that you be transferred to a Veteran Administration (VA) facility near your home.  Additionally, it was stated that convalescence leave was to be expected to be prolonged, and most probably permanent.  At that time, you had no pending disciplinary action.  On 22 April 1971, a PEB found you not fit for duty because of a physical disability, that it incurred while you were not entitled to receive basic pay, was not due to intentional misconduct or willful neglect, it incurred during a period of UA, and the disability may be permanent. Based on your Armed Forces of the United States Report of Transfer of Discharge (DD Form 214), on 25 June 1971, you received an honorable discharge due to a physical disability without severance pay. 

The Board carefully weighed all potentially mitigating factors, such as your desire to have your LOD changed to state you were not in UA status, and assertions that consideration of all the circumstances surrounding your leave was not considered in the LOD determination and UA finding, that no punitive findings or punishment was administered in reference to your UA, and no time was lost in accordance with a UA finding per your military records. Additionally, that you requested another extension of leave from your sergeant, and were under the belief that your request was authorized.  The Board found that there was no material error or injustice in your status as UA at the time. The VA determines whether to provide benefits under their applicable statutes and regulations, which you may appeal under their procedures. 

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.  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, 


6/24/2019