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

Docket No. 10761-18 Ref: Signature Date 

This is in reference to your application of 6 November 2018 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 that 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 7 May 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 advisory opinions contained in Medical/Psychiatric Advisor CORB letter 1910 CORB: 002 of 25 March 2020 and Director CORB letter 1910 CORB: 001 of 31 March 2020 along with your response to the opinions. 

A review of your record shows that you entered active duty with the Marine Corps on  17 June 1985.  On 1 June 1994, a medical board referred you to the Physical Evaluation Board (PEB) for chronic low back pain and chronic right shoulder pain.  The PEB found you unfit for continued naval service on 24 August 1994 for your low back pain and assigned you a 10% disability rating. You were discharged from the Marine Corps on 1 April 1995 with severance pay pursuant to the PEB findings in your case.  On 11 May 1995, you were seen at medical with a three-month history of diabetic symptoms and diagnosed with non-insulin dependent diabetes mellitus.  You were prescribed oral medication for treatment for your symptoms.  Follow-up medical visits show that your diabetic condition was controlled through medication, diet, and exercise.  On 13 September 1996, the Department of Veterans Affairs (VA) assigned you a 20% rating for your diabetes condition. 

The Board carefully considered your arguments for placement on the disability retirement list. You assert that your diabetic condition was also unfitting and should have resulted in your placement on the disability retirement list.  Unfortunately, the Board disagreed with your rationale for relief. In making their findings, the Board substantially concurred with the advisory opinions contained in Medical/Psychiatric Advisor CORB letter 1910 CORB: 002 of 25 March 2020 and Director CORB letter 1910 CORB: 001 of 31 March 2020.  Specifically, the Board concluded there was insufficient evidence your diabetes mellitus was unfitting for continued naval service.  In the Board’s opinion, there was insufficient evidence your condition would have prevented you from performing the duties of your office, grade, rank or rating.  Medical evidence documents that your diabetes condition was controlled through oral medication, diet, and exercise.  Therefore, despite your initial symptoms that may have been unfitting when first diagnosed, your symptoms improved to a level where, more likely than not, you would have been able to perform the duties as a Disbursing Clerk.  Had your diabetes symptoms not improved, the Board might have found a basis for a finding of unfitness as you argued in your response to the advisory opinion.  However, based on the medical evidence of your improved condition shortly after treatment, the Board determined your diabetes condition would not have resulted in a finding of unfitness if you had been diagnosed prior to your discharge. Finally, the Board was not persuaded by the VA rating for your diabetes condition 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.  While the Board 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. 

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 the 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, 

6/5/2020