DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 1722-19 Ref: Signature Date 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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your case on its merits. A three-member panel of the Board, sitting in executive session, considered your application on 21 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. In addition, the Board considered the advisory opinion contained in Senior Medical Advisor CORB letter 1910 CORB: 002 of 30 March 2020 and Director CORB letter 1910 CORB: 001 of 10 April 2020 along with your response to the opinions. A review of your record shows that you entered active duty with the Marine Corps on 26 July 2004. You suffered a concussion while deployed to after being exposed to an Improvised Explosive Device blast. You were later referred to the Physical Evaluation Board (PEB) in March 2011 by a medical board for low back pain, right knee contusion, bilateral inguinal hernias, Traumatic Brain Injury (TBI), and Post-Traumatic Stress Disorder (PTSD). The PEB found you unfit for continued naval service for your back condition and assigned you a 10% disability rating consistent with the proposed Department of Veterans Affairs (VA) ratings. Your other referred disability conditions were determined not to be separately unfitting. After you requested a formal hearing, the formal PEB concurred with the findings of the informal PEB. You were subsequently discharged on 15 May 2012 pursuant to your PEB findings. Post-discharge, the VA rated you for PTSD at 70% in 2017. The Board carefully considered your arguments that you were improperly rated by the PEB and discharged. You assert that you were unfit for your mental health disability conditions and continue to suffer from lower back pain. Unfortunately, the Board disagreed with your rationale for relief. In making their findings, the Board substantially concurred with the advisory opinions contained in Senior Medical Advisor CORB letter 1910 CORB: 002 of 30 March 2020 and Director CORB letter 1910 CORB: 001 of 10 April 2020. Specifically, the Board determined the preponderance of the evidence supports the PEB findings in your case. In order to find a service member unfit for continued naval service, the member must be unable to perform the duties of their office, grade, rank,or rating as a result of a disability condition. In your case, the Board was not able to find sufficient evidence to support a finding that you were unfit for PTSD or TBI. The Board noted that a 25 April 2011 medical board addendum noted your mental health was stable and unremarkable despite you taking no medication for your mental health. In the Board’s opinion, this was strong evidence that your mental health conditions were not unfitting at the time of your discharge from the Marine Corps. Further, based on medical evidence you were not treated for any TBI symptoms for over two years prior to the PEB’s adjudication of your case, the Board agreed with the PEB’s finding that your TBI condition was not sufficiently impairing to be found separately unfitting. The fact you were referred to the PEB for those two conditions by a medical board did not persuade the Board they were unfitting conditions since the PEB, not the medical board, is responsible for making the determination based on a review of the medical evidence. Regarding your back condition, the Board concluded the preponderance of the evidence supports the PEB assigned rating of 10%. Since you were assigned a proposed rating of 10% by the VA for your back condition, the PEB correctly adopted the proposed rating in accordance with the applicable regulations. The fact your condition has worsened or not improved since your discharge did not convince the Board that your 10% rating was inaccurate at the time of your discharge. The Board determined that the worsening of disability conditions after discharge is common for service members and fall under the purview of the VA since military disability ratings are assigned as of the date of discharge. Finally, the Board was not persuaded by your post-discharge VA ratings since eligibility for compensation and pension disability ratings by the VA is tied to the establishment of service connection and is manifestation-based without a requirement that unfitness for military duty be demonstrated. As pointed out earlier, the Board found sufficient medical evidence that supports the PEB finding that your PTSD and TBI conditions were not sufficiently impairing to merit a finding of unfitness for continued naval service. Therefore, while the Board empathizes with your current medical condition, they felt compensation and treatment for your disability conditions fall outside the scope of the Department of Defense disability system and under the purview of the VA. 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 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.