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

Docket No. 4537-18 
Ref: Signature Date 


This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 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 case on its merits.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 15 November 2018.  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 the Marine Corps Reserve in February 2004.  You served successfully, including several periods of extended active duty, to include a deployment in support of Operation Enduring Freedom.  On 18 April 2014, you pled guilty in civilian criminal court to theft of government property and witness tampering.  As a result, you were mailed notification of administrative separation processing for commission of a serious offense via certified mail.  As part of your administrative separation, you were notified of a Post-Traumatic Stress Disorder (PTSD)/Traumatic Brain Injury (TBI) screening requirement prior to your discharge.  However, all of your notifications were returned from your last known address as undelivered.  Based on your misconduct, you were discharged from the Marine Corps Reserve on 20 November 2014 with an Other than Honorable characterization of service. 

The Board carefully considered your arguments that you deserve a retroactive promotion to E-7 and placement on the disability retirement list.  Unfortunately, the Board disagreed with your rationale for relief. First, Board regulations require Petitioners to exhaust all their administrative remedies prior to having the Board consider their applications for relief.  In your case, there was no evidence you sought a review by the Marine Corps Performance Evaluation Review Board.  

Therefore, the Board concluded you have not yet exhausted your administrative remedies regarding your request to be promoted or review of fitness reports.  Second, the Board concluded there was insufficient evidence of unfitness for continued naval service to place you on the disability retirement list.  Even though you allude to the PTSD/TBI screening that was never conducted due to the Marine Corps’ inability to contact you, there was no evidence of disability conditions provided with your application that warranted a finding that you were unable to perform the duties of your office, grade, rank or rating at the time of your discharge from the Marine Corps Reserve.  In addition, your last fitness report in your record indicated you were ranked as a highly qualified Marine with a recommendation for promotion.  The Board considered this as strong evidence of fitness for continued naval service.  Third, the Board also concluded that you were ineligible for disability processing based on your misconduct.  Disability regulations require misconduct separation proceedings to supersede any disability processing.  So even if there was evidence of unfitness due to a qualifying disability condition in your case, the Board determined you were ineligible for military disability benefits due to your misconduct that resulted in an Other than Honorable characterization of service.  Accordingly, the Board concluded there was insufficient evidence of error or injustice to warrant a change to your record with regard to the disability issue. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken at this time. You are entitled to have the Board reconsider its decision upon the submission of new and material evidence.  New evidence is evidence not previously 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,