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

Docket No: 11403-19 
Ref: Signature Date 

Dear   : 

This letter is in reference to your reconsideration request of 25 November 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been denied.  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 relevant portions of your naval record and your application, the 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 21 April 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. 

You enlisted in the Marine Corps and began a period of active duty on 14 June 2004. Between 19 January 2006 and 22 April 2008, you received non-judicial punishment (NJP) on five occasions.  You deployed in January 2007, in support of Operation Iraqi Freedom, where you served until you were medically evacuated in November 2007, due to serious injuries sustained after a vehicle rollover.  On 3 June 2008, you were notified of administrative separation on the basis of misconduct due to a pattern of misconduct and drug abuse; you waived your right to appear before an administrative separation board.  On 22 August 2008, you again received NJP for absence from your appointed place of duty and failing to obey a lawful order.  You were discharged with an other than honorable characterization of service on 10 September 2008. You subsequently petitioned the Naval Discharge Review Board (NDRB) for an upgrade to your service characterization in part to receive medical treatment.  NDRB denied your request on 22 January 2010.  In 2010, Veterans Affairs (VA) diagnosed you with Post Traumatic Stress Disorder (PTSD) due to service in a combat environment and due to the vehicle rollover accident. 

In 2017, you petitioned the Board for an upgrade to your characterization of service.  The three-member panel recommended denying your request, in part due to the misconduct that pre-dated your deployment and the rollover accident.  The Board Director, however, recommended approving your request; in 2018, your record was corrected to reflect an upgrade to a general discharge, a separation code of JFF, a narrative reason for separation of Secretarial Authority, and a separation authority of MARCORSEPMAN 6214, 

In your current petition to the Board, you ask for medical retirement for injuries sustained in Iraq.  You provide a 2019 VA Rating Decision letter in which the VA granted numerous disability ratings for various medical conditions or injuries, to include: right shoulder strain 20%; neuropathy, left medial antebrachial cutaneous nerve 20%; traumatic brain injury 10%; cervical strain 10%; tinnitus 10%; left wrist strain/forearm fracture 10%; left knee contusion and laceration 10%; left forearm fracture 10%; scar left forearm with underlying soft tissue damage 20%; scar left knee 10%; scar left forearm 10%; scar left hip and thigh status post grafting 0%; left hip strain with bone donation and residual pain 10%; facial, left forehead, and right scalp scars status post lacerations 0%; hearing loss, left ear 0%; osteomyelitis, left forearm fracture 0%; and post orbital fracture 0%.  You feel the severity of your injuries would have resulted in medical retirement. 

Your request was fully and carefully considered by the Board in light of SECNAVINST 1850.4 series.  SECNAVINST 1850.4 series states processing for administrative discharge for misconduct take precedence over processing for disability.  The Board considered your assertion of suffering injuries which you believe entitle you to a medical retirement.  The Board also took note of the injuries you received in Iraq.  The Board reviewed the VA’s 2019 decision to grant numerous disability ratings for various conditions, to include multiple bodily injuries.  The Board found that there is insufficient evidence to support a finding that your injuries impacted your fitness for duty at the time of your military service.  The Board then noted, that even assuming that you did sustain injuries that may have impacted fitness for duty and merited consideration by a Medical Board and possible review by a Physical Evaluation Board, your misconduct as evidenced by your numerous NJPs (most of which occurred prior to the rollover accident) was an appropriate basis for your administrative discharge.  The Board found that even if your fitness for duty was impacted by your injuries, that processing on the basis of misconduct superseded medical disability processing.  The Board determined that the evidence you presented does not overcome your processing for misconduct.  Even in consideration of the upgrade that you previously received from the Board, the current Board found that your administrative separation on the basis of misconduct was appropriate.  The Board determined that your record does not reflect an error or injustice that merits corrective action. 

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,