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 the entire record, 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. 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 for Correction of Naval Records, sitting in executive session, considered your application on 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. A review of your record shows that you entered active duty with the Marine Corps in December 1988. You were convicted by a Special Court-Martial on for disobeying a commissioned officer and dereliction of duty. You subsequently went into an unauthorized absence status for approximately 30 days on which resulted in another Special Court-Martial conviction on and a bad conduct discharge (BCD) sentence. You were medically cleared for release from active duty on before entering an appellate leave status on Your appellate review was completed on and your BCD was executed on You assert that you underwent surgery to your right ear while in an appellate leave status which resulted in the development of a tumor and loss of hearing. The Board carefully considered your arguments that you deserve a change to your narrative reason for separation to disability and an upgrade to your characterization of service. You assert that you are seeking Department of Veterans Affairs (VA) benefits to address your hearing loss and that your discharge from the Marine Corps was both unfair and defective. Unfortunately, the Board disagreed with your rationale for relief. First, the Board found no evidence that your discharge was defective or unfair. You argue that you were not medically cleared to separate from active duty and required surgery to correct a ruptured ear drum in your right ear. The Board found that you were medically cleared to separate from active duty In your report of medical history, you document that you are in excellent health and your examination did not note any change in your hearing compared to your enlistment physical. Based on the medical examination, the Board concluded you were medically cleared to enter into appellate leave status and were fit for active duty upon commencing appellate leave. The fact you underwent surgery during your appellate leave period and may have developed a disability condition did not convince the Board that you were erroneously or unfairly discharged from the Marine Corps. Title 10, United States Code, Section 1203 requires a disability condition to be incurred while a service member is in receipt of basic pay in order to qualify for a disability related separation. SECNAVINST 1850.4B specifically identifies service members in an appellate leave status as members not entitled to receive basic pay and, therefore, not eligible for disability benefits. Based on these statutory and regulatory requirements, the Board concluded that any disability conditions you may have developed after entering an appellate leave status do not qualify for disability benefits. Additionally, the Board also found that you were ineligible for disability benefits based on your pending punitive discharge from the Marine Corps. Disability regulations specify that disability processing is superseded by misconduct processing. So even if there was evidence that you were unfit for continued naval service prior to you commencing appellate leave, the Board determined you did not qualify for a disability discharge based on your court-martial awarded punitive discharge. Second, the Board concluded your characterization of service remains appropriate. You were convicted by two Special Courts-Martial after serving approximately 11 months of active service during which you were sentenced to 145 days of confinement and in an unauthorized leave status for 30 days. Based on your history of misconduct and the seriousness of your offenses which resulted in the confinement and punitive discharge, the Board felt the preponderance of the evidence supports leaving your characterization of service unchanged. The Board considered the mitigating evidence you provided regarding your hearing loss and need for VA benefits but felt this evidence was inadequate to overcome the aforementioned convictions and misconduct. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issue(s) involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of 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 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.