DEPARTMENT OF THE NAVY 

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

Docket No. 9855-18 
Ref: Signature Date 

Dear 
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 21 February 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. 

A review of your record shows that you entered active duty with the Marine Corps in November 
2007. On 30 January 2011, you were discharged pursuant to a finding by the Physical 
Evaluation Board that you were unfit for continued naval service due to degenerative disc 
disease with osteoarthritis of lumbar spine and degenerative arthritis of the sacroiliac joint. You 
were assigned a 20% disability rating consistent with Department of Veterans Affairs (VA) 
proposed ratings and discharged with severance pay. Post-discharge, the VA increased your 
disability rating for your lumbar condition to 40% effective 23 August 2012 and later rated you 
for left lower radiculopathy of the sciatic and femoral nerves at 10% each. Effective 11 June 
2015, the VA granted you Individual Unemployability status with a 100% disability rating. 

The Board carefully considered your arguments that you deserve to be placed on the disability 
retirement list due to the worsening of your lumbar related disability conditions and increases in 
VA combined ratings. Unfortunately, the Board disagreed with your rationale for relief. The 
Board found no error with the PEB decision to rate your lumbar condition at 20% since that was 
consistent with the proposed VA ratings for your PEB referred condition. By regulation, the 
PEB is required to adopt the VA proposed ratings for PEB referred conditions. The fact your 
condition worsened after your discharge from the Marine Corps and led to an increase in your 
VA disability rating was considered by the Board determined not to be probative on whether the 
PEB committed an error. Since the PEB is required to issue a disability rating effective on the 
date your release from active duty, the Board concluded increases in your VA disability rating 
more than 12 months after your release from active duty did not support a finding that an error 
was committed by the PEB. In the Board’s opinion, any worsening of a service connected 
disability condition after a service member’s release from active duty falls under the purview of 
the VA. Based on the VA’s decision to increase your disability rating in 2012, 2014, and 2015, 
the Board concluded the VA is properly compensating you for your service connected disability 
conditions as required by law. As a result, in addition to finding no error with the PEB findings 
in your case, they also found no injustice based on the VA’s actions to properly compensate you. 
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 
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, 

2/25/2019 

Executive Director