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

Docket No. 10591-19 
Ref: Signature Date 

Dear

This letter is in reference to your reconsideration request dated 5 November 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board 
procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  
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.
 
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 6 February 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. Additionally, the Board considered the advisory opinion contained in HQMC ltr 6890 CJA of 9 August 2019; a copy which was presented to you for comment as part of your previous application to the Board. 

The Board carefully considered your arguments that you deserve to be placed on the disability retirement list as a result of a shoulder injury you incurred during a drill weekend on 10 February 2008.  Unfortunately, the Board disagreed with your rationale for relief.  In order to be placed on the disability retirement list, a service member must be found unfit for continued naval service by the Physical Evaluation Board (PEB) for a qualifying disability condition.  SECNAVINST 1850.4E states that an inactive duty reservist may only be processed into the Disability Evaluation System for an fit/unfit determination by the PEB is they are “ordered to active duty and serves a period of active dutygreater than 30 days” and “member incurs or aggravates a condition during this period of active duty.” In your case, the Board found no evidence to support a finding that you incurred your shoulder injury during a period of active duty greater than 30 days.  Therefore, the Board concluded that you were not eligible for a referral to the PEB for an unfitness determination based on your shoulder injury for placement on the disability retirement list.  Further, the Board did not find persuasive that you were not fit for release from the Navy Reserve.  Your record shows that you were medically cleared to return to work without restrictions on 27 January 2009.  The Board concluded that this medical evidence supports the Marine Corps decision to find you fit for release from the Marine Corps Reserve.  In conclusion, while the Board empathizes with your current shoulder condition, they felt compensation and treatment for your disability condition fall outside the scope of the Department of Defense disability system and under the purview of the Department of Veterans Affairs.  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 reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 

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,