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 the entire record, 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 2 April 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.  In addition, the Board considered the enclosed 28 January 2020 and 10 February 2020 advisory opinions (AOs) furnished by the Senior Medical Advisor, Council of Review Boards (CORB) and Director, CORB, respectively, along with your response to the AOs. 
 
A review of your record shows that you entered active-duty service in the Marine Corps in October 2008.  During basic training, you suffered a neck injury that eventually required surgery in April 2010 and resulted in your placement on limited duty.  A medical board diagnosed you with cervicalgia and radiculopathy on 15 August 2010 and referred you to the Physical Evaluation Board (PEB).  The PEB found you unfit for continued naval service due to cervicalgia and assigned you a 20% rating consistent with the proposed Department of Veterans Affairs (VA) rating for your unfitting condition.  The VA also proposed ratings for several additional service-connected disability conditions, including dyssomnia, lumbar strain, and carpal tunnel.  Based on your PEB findings, you were discharged with severance pay on 30 March 2011.  After your discharge, your dyssomnia diagnosis was eventually changed to major depressive disorder.   
 
The Board carefully considered your arguments that you were improperly rated by the PEB and deserve to be placed on the disability retirement list.  You assert that you were also unfit due to major depressive disorder, lumbar strain, and carpal tunnel, in addition to your cervicalgia condition.  Unfortunately, the Board disagreed with your rationale for relief.  The Board found insufficient evidence to support a finding that you were unfit for a mental health condition, lumbar strain, or carpal tunnel.  The Board relied on several pieces of evidence in making its finding and substantially concurred with the AOs.   
First, the Board relied on your 27 October 2010 mental health examination, which documented that, despite experiencing symptoms, these “do not appear to negatively impact functioning.”  This was strong evidence to the Board that your mental health symptoms, whatever the diagnosis, were not creating a substantial occupational impairment to merit a referral to the PEB.  Based on the medical documentation that your functioning was not impacted by your mental health condition, the Board concluded that it did not prevent you from performing the duties of your office, grade, rank, or rating at the time of your discharge.  The Board considered the fact your mental health condition may have been misdiagnosed but concluded that this did not change their finding, since there was medical documentation that your mental health symptoms, regardless of the diagnosis, did not negatively impact your functioning.  So the fact your dyssomnia diagnosis was later changed to bipolar disorder and again to major depressive disorder did not convince the Board that you were unfit for continued naval service due to any of the conditions. 
 
Second, the Board relied on your July 2010 VA Compensation and Pension Examination in which you denied mental health symptoms and lost time due to your mental health.  In the Board’s opinion, this examination corroborates the later mental health finding that your symptoms did not create an impairment.   
 
Third, the Board also relied on the non-medical assessment (NMA) that did not document your back or mental health issues as the cause of your inability to perform your duties.  This was additional evidence that your cervicalgia condition was the only disability condition that was creating a sufficient occupational impairment to merit a finding of unfitness for continued naval service.  While the Board considered your argument that your neck treatment likely mitigated your back and carpal tunnel symptoms, the Board ultimately concluded that the preponderance of the evidence did not support a finding of unfitness for those two conditions, since the NMA did not mention either condition.  Therefore, while the Board empathizes with your current medical condition, it concluded that compensation and treatment for your disability conditions fall outside the scope of the Department of Defense disability system and is, instead, under the purview of the VA.  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.