DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 3307-19 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 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 3 October 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 September 1993. After suffering a great right toe amputation due to an accident, a medical board referred you to the Physical Evaluation Board (PEB) for traumatic amputation of right great toe status post split-thickness skin graft. The PEB found you unfit for continued naval service and rated your condition at 30% resulting in your placement on the Temporary Disability Retirement List (TDRL) on 29 February 1996. On 7 May 1988, you underwent a TDRL periodic examination that indicated you were experiencing minimum symptoms with your unfitting condition. You were attending college at the time and suffered no limitations with running, walking, or ice skating. Based on the TDRL periodic examination report, the PEB found you unfit for continued naval service on 8 June 1998 but lowered your disability rating to 10% based on the minimal occupational impairment you were experiencing at the time. After accepting the PEB findings on 15 September 1998, you were discharged pursuant to the PEB findings with severance pay. On 30 July 2018, the Department of Veterans Affairs (VA) increased your disability rating for your right toe condition to 30%. The Board carefully considered your arguments that you deserve to be placed on the disability retirement list due to the 2018 VA decision to increase your disability rating for your unfitting condition. Unfortunately, the Board disagreed with your rationale for relief. First, the Board found sufficient evidence to support the 1998 PEB findings that your unfitting condition merited a 10% rating. The Board relied on the 7 May 1998 TDRL periodic examination report that showed you were capable of walking, running, and ice skating, despite your disability condition. In their opinion, this documents that you were minimally affected by your unfitting condition in 1998 and properly assigned the 10% rating. Second, the Board did not find your 2018 VA rating of 30% persuasive evidence for finding the PEB erred in 1998. The PEB is charged with assigning a disability rating appropriate at the time they consider a case. So the fact the VA determined your condition worsened over time and required an increase in your disability rating approximately 20 years after the PEB made their decision did not convince the Board the PEB findings were erroneous. As explained earlier, the Board found the preponderance of the evidence supports the 1998 PEB findings in your case. 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, 10/8/2019