DEPARTMENT OF THE NAVY 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 5399-18 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 case on its merits. A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 3 October 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. In addition, the Board considered the advisory opinions contained in Senior Psychiatric Advisor CORB letter 1910 CORB: 002 of 9 August 2019 and Director CORB letter 1910 CORB: 001 of 16 August 2019 along with your response to the opinions. A review of your record shows that you entered active duty with the Marine Corps In May 1980. You suffered from episodes of pneumonia in 1989 and 1990 before deploying in support of Operation Desert Storm in 1991. You were released from active duty in October 1992 after failing to select twice for promotion to O4 and transferred to the Marine Corps Reserve. You were promoted to O4 in May 1994 before the Bureau of Medicine and Surgery (BUMED) determined on 5 October 1995 that you were not physically qualified (NPQ) for retention in the Marine Corps Reserve due to arthritis of the knees and status post laminectomy. You requested a Physical Evaluation Board review of the BUMED determination and argued that your NPQ conditions were incurred on active duty. However, you were denied a Notice of Eligibility (NOE) by the Marine Corps based on their determination your disability conditions were not service incurred or aggravated. On 1 May 1996, the PEB affirmed the BUMED determination that you were NPQ for retention in the Marine Corps Reserve. You were placed on the Honorary Retired List in January 1997. The Board carefully considered your arguments that you should be referred to the disability evaluation system to determine whether you should be placed on the disability retirement list. You assert that you were unfit for continued naval service in 1996 due to Post-Traumatic Stress Disorder (PTSD), a lung condition, back pain, and bilateral knee pain. Unfortunately, the Board disagreed with your rationale for relief. In making their findings, the Board substantially concurred with the advisory opinion contained in Senior Psychiatric Advisor CORB letter 1910 CORB: 002 of 9 August 2019 and Director CORB letter 1910 CORB: 001 of 16 August 2019. Specifically, the Board found insufficient evidence that you would have been found unfit for continued naval service had you been referred to the PEB for a fitness determination in 1996 with an approved NOE. As pointed out in the advisory opinion, your record of limited care for your claimed conditions leading up to the BUMED NPQ determination would not have supported a finding that your disability conditions created a sufficient occupational impairment to warrant an unfitness finding by the PEB. The Board noted that you served successfully in the Marine Corps Reserve after you were medically cleared to separate from active duty in 1992. During this time, you earned a promotion to O4 and earned reserve service credit through 1995 during which you expressed that you were in “good health” in March 1995 as part of your periodic/separation physical. So even considering your argument that you were never properly diagnosed with PTSD, this was strong evidence of fitness for active duty to the Board since there was no evidence that you would be unable to perform the duties of your office, grade, rank or rating due to your disability conditions and you claimed to be in “good health.” Further, the fact you were deemed NPQ to fulfill your Marine Corps Reserve obligation by BUMED, despite your claim of good health, did not convince the Board you would have been found unfit by the PEB had a NOE been issued in your case since the circumstances of your case would have warranted a different consideration by the PEB under different guidelines. Based on this finding, the Board relied on the advisory opinion determination that you would have been found fit by the PEB under those different circumstances since CORB is the Secretary of the Navy’s executive agent for Department of Navy disability matters and oversees the PEB. So contrary to your argument that they lack the expertise to issue an advisory opinion in your case, the Board determined they possess the expertise in military disability matters and is the Department of Navy authority on whether available evidence supports a finding of unfitness for continued naval service. In conclusion, the Board agreed with the rationale provided by CORB that you did not appear to suffer from a sufficient occupational impairment in 1995-1996, based in part on your lack of treatment for your conditions, to merit a finding that you were unable to perform the duties of your office, grade, rank or rating. Had you been referred to a medical board or the PEB, the Board reasoned that you would have been found fit based on the lack of unfitness evidence in your record. Therefore, they found that the preponderance of the evidence does not support your referral to the disability evaluation system or placement on the disability retirement list. 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.