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

Docket No. 10078-19 
Ref: Signature Date 


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 23 January 2020.  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 August 1986.  You were diagnosed with a lumbar strain on 29 January 1987 and revealed a history of back pain prior to entering the Marine Corps.  As a result, on 25 March 1987, a medical board concluded your low back pain was a preexisting condition that was not aggravated by your service and you were recommended for discharge due to a physical disability that existed prior to entry.  On 30 April 1987, you were discharged pursuant to the medical board findings with an Honorable characterization of service. In 2019, the Department of Veterans Affairs (VA) rated you for lumbosacral strain at 10%.  

The Board carefully considered your arguments that your lower back pain was incurred or aggravated byyour active duty service.  You assert the VA’s decision to grant you a service 
connection substantiates your claim of error.  

Unfortunately, the Board disagreed with your rationale for relief.  First, the Board determined your back condition existed prior to your entry onto active duty based on the medical evidence in your record that documents your prior back injury from wrestling that occurred four years prior to your active duty period.  Absent medical evidence to the contrary, the Board determined the preponderance of the evidence supports the medical board determination that the source of your back pain was the prior wrestling injury.  Second, the Board found insufficient evidence to support a finding that your low back pain was service aggravated.  In order to find a disability condition is aggravated by active service, there must be a finding that the condition progressed in severity beyond its natural progression.   Based on the 2019 VA rating of 10% for your back condition, the Board determined your low back pain symptoms were more likely than not mild at the time of your discharge from the Marine Corps since back conditions generally worsen over time.  Based on this finding, the Board determined the preponderance of the evidence did not support a finding that your back pain from your preexisting back condition had progressed beyond its natural progression at the time of your discharge.  The Board noted that the VA is a different governmental agency that operates under different statutes and regulations in making their determinations.  Therefore, the Board did not find their 2019 service-connection finding persuasive without a detailed explanation why they discounted the military medical findings.  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.  
Sincerely,