Docket No: 10711-19 
Ref: Signature Date 


This is in reference to your application of 15 November 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.  You previously petitioned the Board and were granted relief in 2017 with regard to a referral to the Physical Evaluation Board (PEB).  In your current petition, you take exception to the PEB’s execution of the relief granted by the Board. 

A three-member panel of the Board, sitting in executive session, considered your application on 24 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. 

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 began a period of active duty from 11 February 1991. You were involved in a vehicle accident on 25 October 1991; you were thrown from the vehicle and seriously injured.  A command line of duty investigation determined that you injuries were not incurred in the line of duty because of your decision to be a passenger in a vehicle driven by an intoxicated driver.  On 4 March 1992, Commanding General, determined that your injuries were incurred in the line of duty.  You appeared before a Physical Evaluation Board (PEB) on 22 May 1992, which found that your condition was not ratable due to intentional misconduct.  On 12 April 2017, the previous Board found that you were subjected to an injustice in that you were not rated by the PEB and discharged without consideration for disability benefits.  The previous Board noted that the PEB failed to consider the memorandums in regard to the line of duty determinations.  The previous Board directed that the PEB record should show that your injuries were incurred in the line of duty and returned your record to the PEB to issue a disability rating and revised final disability adjudication.  A PEB convened in 2018, and considered the traumatic brain injury which you incurred on active duty as a result of the motor vehicle accident.  On 23 April 2018, the PEB findings were forwarded from the President, PEB to the Commandant of the Marine Corps.  The findings were that in each instance, you were found fit to perform the duties of your office, grade, or rank on active duty.  The PEB was comprised of a medical officer and two line officer; they considered that following your separation you became a teacher and have continued as a teacher ever since.  The PEB accordingly determined that there is no evidence that supports that your condition was or is unfitting.  You were notified of the findings and directed that you could request that your case be considered by a formal hearing which would be held at a PEB Hearing Panel at the Navy Yard.  The PEB conclusion was that there is no available command information to understand how this diagnosis may have affected your performance in rate. You did not respond.  On 15 March 2019, you obtained pro bono representation. 

In your current application you provide a report from a medical expert from 9 August 2019, with conclusion that to a reasonable degree of medical certainty, at least as likely as not, your disability conditions are due to the service-connected severe TBI and other conditions you sustained in October 1991.  The medical expert asserts that you should receive a 70% rating.  You ask for a review of the PEB decision and issue a determination of unfitness for duty, with a finding that the 1992 discharge was unjust.  You seek a disability rating as well as back pay and compensation for medical retirement, along with reimbursement for lost income and medical out of pocket expenses.  You provide a brief in support of your request and contend that the PEB failed in its 23 February 2018 decision to award a disability rating for your permanent injuries incurred while on active duty.  You provide numerous assertions for reversal of the 2018 PEB decision to include the following: (1) the PEB decision should be reversed because it is not supported by and contradicts the substantial evidence in your Official Military Personnel File (OMPF), medical records, and VA claim; (2) the PEB erred in failing to identify what law it applied: 1992 or 2018; (3) the PEB erred in failing to follow the law; (4) the PEB decision was not supported by the substantial evidence available to the PEB (noting that fitness for duty and medical retirement cannot rely on conclusory statements as substantial evidence); (5) that an overwhelming amount of military personnel and military records (95 exhibits) were not obtained, reviewed, and addressed by the PEB decision; and (6) that you met your burden of proof and the evidence you submitted overcomes the PEB’s presumption of regularity. 

The Board, in its review of your entire application, carefully weighed all factors in your case, including your contentions that the 2018 PEB made an unjust and erroneous finding.  The Board, however, noted that the PEB was properly convened and took into account the injuries you suffered in the line of duty when making its finding that you were fit for duty.  The Board considered that the PEB membership properly included a medical officer, who presumably assisted the PEB in assessing your fitness for duty.  The Board also accounted for the fact that you accepted the informal 2018 PEB decision, and did not seek a formal PEB within a timely manner.  Even taking into account the impact the TBI may have had on your non-contention of the 2018 PEB determination, the Board found that your acceptance of the 2018 PEB decision reflects your concurrence with its finding of fitness for duty. 

Regarding your claim that the PEB decision should be reversed because it is not supported by and contradicts the substantial evidence in your OMPF, medical records, and VA claim, the Board considered that the 2018 PEB states that “there is no available command information to understand how this diagnosis (TBI) may have affected (your) performance in rate.”  The Board noted that you only served in the Marine Corps for a short period of time from February 1991 to August 1992, and that you suffered your injuries in October 1991.  The Board found that your injuries were such that your command felt a PEB was warranted, indicating that there was concern regarding the nature of your injuries and their impact on your fitness for duty.  Even taking into account your medical record and the VA determination, the Board relied in part on your post-discharge information to assess the impact your TBI had on your fitness for duty.  The Board determined that the evidence you provided to the 2018 PEB, to include that following your discharge you became a teacher and have continued in that profession, indicates that the TBI did not preclude your use of your memory, attention, concentration, and executive function in a productive work environment.  The Board determined that the finding of Fitness for Active Duty by the 2018 PEB was not in error or unjust, and was supported by the information available to the three PEB members. 

The Board considered your claim that the PEB erred in failing to identify what law it applied: statutory guidance from 1992 or 2018.  TheBoard determined that the PEB’s absence of identifying which authority was applied (either 1992 or 2018) does not create a harmful error or an injustice because regardless of which authority was applied, the PEB made a determination of fitness, which is contemplated under guidance from both 1992 and 2018.  The 2018 PEB retroactively assessed your fitness for continued active duty; the Board found you did not provide evidence to establish that the application of 1992 or 2018 guidance would have resulted in a different finding before the 2018 PEB.  The Board again noted that your acceptance of the informal 2018 PEB determination indicates concurrence with the finding of fitness for duty. 

The Board noted your claim that the PEB erred in failing to follow the law, but determined that you did not provide sufficient evidence to establish noncompliance with the statutory guidance and to overcome the findings reflected in the administrative record of the PEB.  The Board reviewed the content of the 2018 PEB’s determination and noted that the membership included two line officers and a medical officer, your fitness for duty appears to have been assessed in consideration of the available medical information, your OMPF, and the post-discharge evidence you provided.  Accordingly, the Board determined that the PEB did not violate its statutory or regulatory mandates. 

The Board noted that you state the PEB decision was not supported by the substantial evidence available to the PEB.  You assert in part that fitness for duty and medical retirement cannot rely on conclusory statements as substantial evidence.  The Board considered your argument, but again relied on the record generate by the PEB, which included an assessment of your post-discharge professional performance as an educator.  The Board found that your post-separation professional success is not a conclusory statement but rather factual information which the PEB properly took into consideration when retroactively determining fitness for duty. 

The Board considered your contention that an overwhelming amount of military personal and military records (95 exhibits) were not obtained, reviewed and addressed by the PEB decision.  The Board found that the absence of detailed commentary or evaluation of the information in the PEB’s decision is not determinative of error or injustice by the PEB.  The Board found that the PEB provided an adequate explanation of its findings, which you accepted through your lack of response and request for a formal PEB following the determination. 

Finally, you state that that you met your burden of proof and the evidence you submitted overcomes the PEB’s presumption of regularity.  The Board again found that the PEB weighed the information in your OMPF, your post-discharge submissions, and your medical record as evidenced by the PEB decision and accompanying administrative record.  The Board noted that your acceptance of the decision outweighs the untimely assertion of error and injustice. 
The Board concluded that the PEB decision, as issued, complies with its regulatory requirements.  The Board found that the absence of a detailed commentary in the PEB decision does not create an error or injustice.  The Board determined that the 2018 PEB was executed without error or injustice, and that its finding that you were fit for duty in 1992, overrides a claimed entitlement to a disability determination or a medical retirement.  Based on the 2018 PEB’s determination of fitness, the Board found that you are not entitled to a discharge on the basis of a disability with severance pay or a medical retirement. 

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. 



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