Docket No: 10951-19 Ref: Signature Date Dear : 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 relevant portions of your naval record and your application, 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. A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 23 November 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 Reserve and began your service in 2006. You deployed to from March 2011 to April 2012. In June 2015, generated a Medical Evaluation Board Report were referred you to Physical Evaluation Board (PEB) for left knee pain (since March 2011) and upper back pain (since April 2012). In August 2015, you we were referred to a PEB for Post Traumatic Stress Disorder (PTSD). On 21 December 2015 an informal PEB found you unfit for duty with a disability rating of 0% for left knee pain; both upper back pain and PTSD were found to be neither separately unfitting nor contributing to the unfitting condition(s). On 30 June 2016, Veterans Affairs (VA) rated you 30% disabled for PTSD, 10% for Thoracic Strain Lumbar Upper Back Pain, and 10% for Traumatic Brain Injury (TBI). On 22 August 2016 a formal PEB found you unfit for continued service with a combined 0% rating. You received the findings of the PEB and on 30 August 2016 you singed an Integrated Disability Evaluation (IDES) FBEB Election of Options form which noted your non-acceptance of the formal PEB findings. On 8 September 2016 you state that filed a “Petition for Relief” to the President, PEB. In support of your statement that you filed a Petition for Relief, you provide the Board with a one page document from you dated 8 September 2016 with the subject line “Petition for Relief” and internal email correspondences from the CORB dated October 2016 in which a “one page letter from the member requesting a PFR” is referenced. On 26 October 2016 final agency action was in concurrence with the formal PEB findings, with a separation date from the Marine Corps Reserve of 29 November 2016. In your application to the Board, you ask for correction to your record to reflect a medical discharge/retirement from the Marine Corp Reserve with a 30% or greater disability rating. You assert that you were unfit for continued naval service due to trauma related stress disorder and thoracic sprain, both conditions which were incurred as a result of a combat related injury. You state you were erroneously denied the opportunity for a review of your Petition for Relief, your PTSD was improperly rated by the formal PEB as evidenced in part by the continued decline in the condition and your subsequent Major Depressive Disorder diagnosis, and the thoracic sprain was improperly rated and should have been assigned at least a 10% rating. You specifically ask for placement on the Permanent Disability Retired List (PDRL) with a combined rating of not less than 40% with strong consideration for the assignment of a 70% combined disability rating as of 29 November 2016. As part of the review process, a Senior Medical Advisory of the Council of Review Boards considered your request and issued an Advisory Opinion which reviewed your assertion that you were unfit for continued naval service due to trauma related stress disorder and thoracic sprain, both conditions where were incurred as a result of a combat-related injury. The Advisory Opinion also considered your contention that your Petition for Relief was denied proper consideration before the final agency action and that you again noted in part the 30 June 2016 VA Rating Decision. The Advisory Opinion concluded that you did not provide sufficient objective evidence that trauma related stress disorder and/or thoracic sprain were separately unfitting for continued naval service at the time of your 2015-2016 IDES processing. The Advisory Opinion found that there was also no evidence that your reported Petition for Relief was completed, mailed, and arrived at the PEB. The Advisory Opinion was provided to you and you submitted a rebuttal dated 1 November 2020, with enclosures. In your rebuttal, you state that the Petition for Relief was part of the TRIM file, and the Counsel to the CORB was notified of the Petition for Relief by email but did not acknowledge the receipt and closed the file without reaching out to either the Code 16 attorney or civilian attorney prior to doing so. With respect to Advisory Opinion’s evaluation of the nature of your thoracic sprain and PTSD, you take issue in part with the Senior Medical Advisor’s comments. You state that the Senior Medical Advisory did not note that the formal PEB was the only entity that focused primarily upon your left should as the source of symptoms, did not note that the VA had found no service connection between the trapezius strain that the formal PEB found to be a Category I condition and your military service, and that your rating for thoracic strain has increased from 10% to 40%. You also state that the Senior Medical Advisory did not address multiple objective assessments of traumatic stress disorder and that this new evidence supports the previous contentions of the unfitting nature of this condition. You again assert that placement on the PDRL is appropriate. The Board, in its review of your entire record and application, carefully reviewed your submissions, the Advisory Opinion, and the rebuttal to the Advisory Opinion. With respect to your assertion that your Petition for Relief did not receive proper consideration, the Board found that you did not provide sufficient evidence to establish that you had properly submitted the Petition for Relief to the President, PEB prior to the final agency action in October 2016 decision. However, the Board determined that even if the 8 September 2016 Petition for Relief had been submitted, it would have not materially changed the outcome of the October 2016 decision and therefore the lack of consideration would have resulted in a harmless error or injustice. With respect to the disability ratings as assigned by the formal PEB and confirmed by final agency action, the Board concurred substantively with the Advisory Opinion and determined that you did not provide sufficient evidence or information to establish that you were unfit for continued duty due to either trauma related stress disorder or thoracic sprain. The Board concluded that you did not establish that at the time of your discharge from the Marine Corps Reserve, you met the criteria for eligibility to be transferred to the PDRL. 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,