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

Docket No: 3707-18 
Ref: Signature Date

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 application on its merits. A three- member panel of the Board for Correction of Naval Records (Board), sitting in executive session, considered your application on 19 August 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, and the Advisory Opinion (AO) of 25 June 2019.

You enlisted in the Marine Corps and began a period of active duty on 12 June 2004. In October 2004, you began to experience continuous unremitting tremors of your left leg and recurring black out spells. On 26 September 2005, a Medical Evaluation Board convened and reviewed your condition of unremitting tremors in your left leg. The Medical Evaluation Board noted extensive neurological workups had been conducted but none of the examinations conclusively determined the cause of your condition. The Medical Evaluation Board determined you had limitations to your service including not being deployable, not being able to drive, no weapons handling, no combat, no PT/PFT. On 13 October 2005, you indicated that you did not desire to submit a statement in rebuttal. A Physical Evaluation Board (PEB) met on 31 October 2005; the PEB found you unfit for duty and recommended that you be separated with severance pay, with a combined disability rating of 10% due to idiopathic tremor with syncope. On 4 November 2005, you submitted a letter to the President of the PEB and noted that you accepted the preliminary finding and waived your right to submit new or additional information or to demand a formal hearing. You were separated from the Marine Corps on 31 December 2005, on the basis of Disability, and received severance pay.

In your petition to the Board, you contend that the PEB should have recommended a medical retirement. You state that you have been diagnosed with Spinal Stenosis, and that the Stenosis has caused Radiculopathy in both arms and both legs. You also state that since your separation, the pain in your back has become harder to deal with and that you have had to seek care through a private orthopedic specialist. You provide medical notes from your civilian provider (2016), and a 2017 decision from Veteran’s Affairs which directed an increase in your disability rating from 40% to 80%.

As part of the review process, the Counsel of Review Boards considered your request for placement on the disability retirement list and issued an AO dated 25 June 2019. The AO determined that the evidence does not support your request because of an absence of information establishing that you manifested spinal stenosis at the time of separation. Furthermore, the AO found that there was no evidence of significant duty performance impairment attributable to spinal stenosis at the time of your separation. The AO was provided to you, and you were given 30 days in which to submit a response. When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration.

The Board carefully reviewed your application and noted your assertion that you are entitled to medical retirement. The Board noted that you appeared before a PEB, and were found unfit for duty due to leg tremors and received a 10% disability rating.  Your 5 November 2005 letter to the President, PEB indicates that you accepted the preliminary findings of the PEB and waived your right to submit new or additional information or to demand a formal hearing. You received a 10% rating on the basis of leg tremors; the 10% rating qualified you for severance pay but did not qualify you for a medical retirement. Additionally, the Board noted that your Marine Corps records do not indicate that your service was impacted by spinal stenosis. Your unfitting condition as determined by the PEB was classified as “idiopathic tremor with syncope.” The Board concurred with the determination of the AO, and concluded that you did not establish that you are entitled to a medical retirement on the basis of either error or injustice.

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,