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

Docket No. 2276-19 
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 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 1 August 2019. 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 July 2004. You were seen in medical for left groin pain on 28 July 2004 and diagnosed with a left side reducible hernia and a possible torsion of your testicle. After being dropped from training, you refused recommended surgery on your hernia condition on 6 August 2004 resulting in your recommendation for administrative separation for condition not a disability. You were notified of administrative separation processing for your medical condition on 20 August 2004 and discharged on 25 August 2004 with an uncharacterized entry level separation for condition not a disability. On 9 December 2009, the Board of Veterans Appeals granted you a service connection for your hernia condition.

The Board carefully considered your arguments that you deserve a change to your narrative reason for separation to disability based on the fact you suffered the hernia condition while on active duty and the Board of Veterans Appeals decision to grant you a service connection for your hernia injury. Unfortunately, the Board disagreed with your rationale for relief. First, the Board concluded you were properly discharged for condition not a disability based on your refusal to undergo surgery to correct your hernia condition. Disability regulations state that a correctable hernia condition is not ratable if surgery is refused.  Additionally, the Board noted that the disability regulations state that if a member unreasonably refuses to submit to medical treatment, any unfitting condition that proximately results from such a refusal is considered to be incurred as a result of a member’s willful neglect. Based on the disability regulations, the Board concluded your lack of confidence in Navy personnel to successfully perform hernia surgery was not reasonable and your hernia condition does not qualify as a ratable disability condition.

Second, the fact that the Department of Veterans Affairs rated you for your hernia condition without considering whether you refused surgery led the Board to conclude that the Department of the Navy operates under different regulations than those that apply to the Department of Veterans Affairs. So despite the Department of Veterans Affairs decision to rate your hernia condition, the Board found the Board of Veterans Appeals’ decision to grant you a service connection not probative on whether the Navy properly discharged you for your hernia condition. 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 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,




















2