Docket No: 1055-19 Ref: Signature Date Dear This is in reference to your application of 9 January 2019 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. A three-member panel of the Board, sitting in executive session, considered your application on 19 May 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. The Board also considered the relevant Advisory Opinion (AO) dated 23 March 2020. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Marine Corps and served honorably from 2 December 2013 to 13 September 2014, earning the rank of lance corporal. You subsequently commissioned in the Marine Corps as a second lieutenant and began a period of active duty on 26 March 2016. On 23 September 2016, while at , you were sent to a TBS level student performance review board. The five-member board recommended that you be administratively separated due to an initial integrity violation and consistent substandard performance as a Marine officer. Over the next several months, you failed to meet the minimum Physical Fitness Test standard to join the Basic Officer Course. In March 2017, you suffered a ruptured cyst in your right maxillary jaw and were recommended for a six-month period of limited duty. In May 2017, you were evaluated by Medical and determined physically qualified for separation. On 19 June 2017, you were again evaluated and found not physically qualified for separation due to a Behavioral Health diagnosis and the need for a surgical consultation for cyst removal. On 30 June 2017, a report of substandard performance of duty was submitted; the report referenced the 17 May 2017 evaluation that found you fit for discharge, not the later June 2017 evaluation that determined you were not physically qualified for separation. On 8 November 2017, you were again evaluated by Medical and determined physically qualified for separation. You note in your application for correction that your November 2017 evaluation was conducted by a nurse practitioner. On 11 December 2017, you were granted Mast with your Commanding Officer (CO) to discuss your medical conditions. Your CO determined that you were not a candidate for a Medical Evaluation Board (MEB). On 20 February 2018, you requested that administrative separation proceedings against you be closed/suspended, and that a MEB be initiated. Your request was not granted and the recommendation for your administrative separation was forwarded to the Assistant Secretary of the Navy Manpower & Reserve Affairs (ASN(M&RA)). On 23 April 2018, ASN(M&RA) approved your administrative separation; his decision cited that you underwent surgery in November 2017 to remove an odontogenic cyst but you did not have surgery until 20 March 2018. On 9 May 2018, you were recommended for limited duty for six months and referral to the Physical Evaluation Board (PEB). On 11 May 2018, you were approved for unrestricted return to duty. On 6 August 2018, you were assessed by Medical and your command was notified that you were not fit for duty due to your existing medical conditions. On 23 August 2018, you were declared medically “not qualified for service” on a Report of Medical Examination (DD Form 2808). On 30 August 2018, you were discharged from the Marine Corps on the basis of substandard performance, and received an honorable characterization of service. You were not evaluated by the PEB prior to your discharge from the Marine Corps due to substandard performance. In your application for correction, you request placement in the Disability Evaluation System (DES) for consideration for medical separation or retirement. You assert that you were recommended for referral to a PEB and were determined unfit for duty by two separate treating physicians but your command elected to pursue administrative separation instead. You claim you were wrongfully denied referral to the PEB, and that your command ignored Medical’s determination of unfitness (made as late as August 2018) to avoid a lengthy medical separation process. Your contentions of error and injustice in your record are based on your assertions that the command failed to follow regulatory guidance by not referring you to a PEB, and that ASN(M&RA) was given false, misleading and incomplete medical information prior to approving your administrative separation. As part of the review process, the Council of Review Boards (CORB) reviewed your request, and issued an AO dated 23 March 2020. The AO considered your contentions that you were found unfit for continued naval service just prior to an erroneous release from active duty on 30 August 2018, that you were entitled to and wrongfully deprived of referral to a PEB/DES processing, and that ASN(M&RA) had factually inaccurate information on which he based his approval of your administrative separation. The AO found that even in consideration of your assertions, that the evidence does not support your request for correction to your record. The AO noted that the cause of your separation was substandard performance at TBS, and determined that your substandard performance was not attributable to any of the petitioned conditions that developed during your time in the Marine Corps. The AO remarked that of the three conditions (cyst of the jaw, fibromyalgia, and cervicalgia), your dental condition was the primary basis for your duty limitations. The AO found that your dental condition (benign tumor) was responding to treatment during your military service, but required periodic dental reassessments over time. The AO stated that your dental condition “was thought . . . to be managed with only minimal imposition on deployability.” TheAO concluded that referral to a PEB “ought to have occurred, though the likely result would have been a findingof fit to continued naval service.” The AO was provided to you, and you were given 30 days in which to submit a response. When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration. The Board, in its review of your entire record and application, carefully weighed your assertions, the information reflected in your record, guidance as outlined in SECNAVINST 1850.4 series, and the AO’s conclusions. The Board noted theAO’s determination that referral to the PEB ought to have occurred, but took into consideration that your separation was initiated and executed due to substandard performance. The Board considered that the nature of your substandard performance reflected an integrity violation, which does not appear to have been caused by your in-service medical conditions. Additionally the Board noted that the AO found that even if you had been referred to a PEB, you would likely have been found fit for duty since your conditions appear to have been responsive to treatment, and had minimal impact on deployability. The Board reviewed your statement that ASN(M&RA) had inaccurate information on which he based his approval of your administrative separation. The Board found that the factual inaccuracies in the information routed to ASN(M&RA), specifically the date of your dental surgery, did not affect the proper approval of your discharge on the basis of substandard performance. The Board noted that your substandard performance of duty does not appear to have been the result of your medical conditions, therefore the timing of your surgery did not influence the validity of the separation. The Board determined that retroactive referral to the DES process is not warranted because, as noted in the AO, your medical conditions likely would not have resulted in a determination of unfitness for duty. Furthermore, the Board found that retroactive referral to a PEB is not appropriate because your discharge was properly predicated upon your substandard performance of duty that was independent of your in-service medical issues. Accordingly, the Board concluded that corrective action is not warranted. 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 the 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.