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 22 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 2001. Prior to twice deploying to in 2003 and 2004, non-judicial punishment was twice imposed on you for unauthorized absence and an orders violation on 21 August 2002 and 28 October 2002, respectively. Upon your return in 2004, you left your unit without authorization and remained absent for approximately four months resulting in a summary court-martial conviction on 9 February 2005. After you were involved in another incident of misconduct involving a criminal threat, vandalism, exhibiting a deadly weapon, and cruelty to a child, you were notified of administrative separation processing for your misconduct on 23 May 2008. In the meantime, you were diagnosed and treated for chronic Post-Traumatic Stress Disorder (PTSD) while awaiting your administrative separation board. On 5 December 2008, the administrative separation board found misconduct but recommended your retention in the Marine Corps. As you approached the end of your obligated active service, you were medically cleared for separation on 9 February 2009. On 23 February 2009, you were discharged at the end of your required active service with an Honorable characterization of service. Post-discharge, the Department of Veterans Affairs (VA) rated you for a number of service connected disability conditions including PTSD, Headaches with TBI, Cervical strain, Lumbosacral strain, Bi-lateral shin splints, Bilateral tinea pedis and onychomycosis, and TBI. 

The Board carefully considered your arguments that you deserve to be placed on the disability retirement list based on your diagnosed PTSD condition that existed while you were on active duty. Unfortunately, the Board disagreed with your rationale for relief. First, in order to be placed on the disability retirement list, a service member must be unfit for continued naval service with a disability rating of 30% or greater. Unfitness is the inability to perform the duties of your office, grade, rank or rating due to a qualifying disability condition. In your case, despite your chronic PTSD diagnosis and treatment in 2008, the Board found the preponderance of the evidence does not support a finding that you were unfit for continued naval service due to your PTSD condition. Specifically, the Board relied on the 9 February 2009 separation physical that determined you were medically cleared for separation. The Manual of the Medical Department Chapter 15-20 requires separation examinations and evaluations for active duty members and states “comprehensive evaluations are conducted for the purposes of ensuring that Service members have not developed any medical conditions while in receipt of base pay that might constitute a disability that should be processed by the Physical Evaluation Board (PEB) and to ensure Servicemembers are physically qualified for recall to additional periods of active duty. Thus, the standards for being physically qualified to separate are the same as those being qualified to continue active duty Service ….” Since you underwent a separation physical and were medically cleared for separation, the Board found medical evidence does not support a finding of unfitness. Second, the Board considered your VA ratings but concluded they were not probative on the issue of unfitness for continued naval service. As mentioned previously, in order to find a service member unfit for continued naval service, there must be evidence of a significant occupational impairment that prevents the performance of military duties due to a disability condition. So the mere presence of a medical condition or specific correspondence of any manifestations thereof to an entry indicating a disability rating contained in the VA Schedule for Rating Disabilities is insufficient to warrant either a finding of unfitness for continued naval service in the absence of demonstrated duty performance impairment of sufficient magnitude as to render a Service member unfit for continued naval service. 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. 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.