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

Docket No: 5138-18              
Ref: Signature date 

This letter 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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.
 
Although you did not file your application 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, sitting in executive session, considered your application on 6 May 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, as well as applicable statutes, regulations, and policies. 

You enlisted in the Marine Corps and began a period of active duty on 19 August 2002.  On 1 April 2003, you were counseled concerning your physical condition which interfered with your duties, specifically, the inability to participate in rigorous exercise, conditioning hikes, and field duty.  The corrective action recommended for you to return to full duty was to comply with the treatment plan provided by medical personnel.  On 7 April 2003, you received a medical assessment and were diagnosed with a history of right femur fracture, with open reduction and internal fixation, prior to entering service.  You had the metal rod securing your right femur removed in order to enlist in the military, and the condition was noted on your entry physical.  However, the injury caused continued pain and difficulty training despite rehabilitative efforts and was considered a condition, not a disability.
On 22 April 2003, administrative discharge action was initiated for the convenience of the government based on your inability to train.  On 22 May 2003, you received an honorable discharge. 

In your application, you request that the Board change your record to reflect the following on your DD Form 214:  (1) change the narrative reason for separation from “Condition, Not a Disability” to “Disability, Temporary”; (2) change your separation code from “JFV1” to “660”; and (3) change your reentry (RE) code from “RE-3P” to “DER – Disability – Non-EPTS – No Severance Pay”.  You state that you are unable to reenlist and attempt to go to Officer Candidate School (OCS) due to your reenlistment code. Additionally, you state that you are unable to use education benefits because your records reflect your condition is not a disability, when you believe it to be service-connected.  Lastly, you include web articles about service members who have challenged their assessment of “Condition, Not a Disability,” and blog comments. 

The Board carefully weighed all potentially mitigating factors in your case, including your record of service and contentions, and concluded there was no error or any factors sufficient to warrant a change to your narrative reason for separation, separation code or RE code.  The Board noted that the changes you requested in (2) and (3) above do not exist.  Additionally, the Board noted that you provided no evidence to support your contentions.  Absent such evidence, the Board relied upon the presumption of regularity and presumed that the officials acted in accordance with governing law/policy and in good faith.  With regard to your contention that you are unable to reenlist due to your RE code, a RE code of 3P does not bar you from attempting to reenlist.  The appropriate venue is to seek a CMC waiver via a prior service recruiter.  With respect to education benefits, whether you are eligible for benefits based on your service is a matter under the cognizance of the Department of Veterans Affairs (DVA). If you have been denied benefits, you may appeal that denial under procedures established by the DVA. 

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,