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

Docket No: 3587-19 
Ref: Signature Date 

Dear :
 
This letter is in reference to your reconsideration request of 23 March 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been denied.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.
 
A three-member panel of the Board, sitting in executive session, considered your application on 12 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.  The Board also considered the relevant Advisory Opinion (AO).
 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 

You enlisted in the Marine Corps and began a period of active duty on 21 May 2001.  In September 2001, you fractured your pelvis during a training accident.  After an extensive therapy and treatment, you consulted with medical personnel on the length of your recovery and elected to be processed for administrative separation.  On 14 August 2002, you were notified of administrative separation proceedings.  On 23 August 2002, you were medically cleared for separation.  On 5 September 2002, you were discharge on the basis of a condition not a disability, and received an honorable characterization of service and a reentry (RE) code of RE­3P.  Since your discharge, Veterans Affairs (VA) has rated you for tendonitis (left hip 40%, 2015), PTSD (70%, 2013), non-displaced fracture left interior pubis ramus (10%, 2007), major depressive disorder (30%, 2002), patellofemoral syndrome right knee (10%, 2015), and plantar fasciitis right foot (10%, 2015). 

In your petition to the Board, you request to be medically retired at 30% for Major Depressive Disorder, claimed as anxiety.  You contend that the Marine Corps failed to diagnose your condition and failed to send you through the Medical Board evaluation process at the time of separation.  You state that the VA initially failed to service connect your condition and rate it, but the VA subsequently acknowledged its error and granted both service-connection and a rating due to your condition at the time of separation from the Marine Corps.  You assert that had you been properly diagnosed with major depressive disorder, you would have been determined unfit and medically retired.  You also contend that the previous Board (Docket Number NR20160008998) based its denial on the condition of Post-Traumatic Stress Disorder (PTSD) rather than Major Depressive Disorder.
 
As part of the review process, the Council of Review Boards (CORB) reviewed your request, and issued an AO dated 19 March 2020.  The AO concluded that the evidence does not support the request.  The AO noted that you opted for an administrative separation following your pelvic injury, although Navy providers expected you to make a full recovery and return to full duty.  The CORB noted that your active duty medical records also show that you had two sick call encounters for mental health complaints and four sessions with a psychologist for pain disorder associated with a general medical condition (pelvic fracture) and depressive disorder not otherwise specified.  The AO found that based on the clinical record, that major depressive disorder was considered in the form of the condition of depressive disorder.  The AO noted that the mere presence of a medical condition is insufficient to warrant a finding of unfitness or a specific disability rating by the Department of Navy Physical Evaluation Board.  The AO concluded that based on your clinical records, the evidence does not support your request for a disability retirement.  The AO was provided to you, and you were given 30 days in which to submit a response.  When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration. 

The Board reviewed your request, and carefully considered your request, your submissions in support of your application, the AO, and the available medical and service records.  The Board noted that you received mental health care and were found fit for duty following your mental health evaluations; you were also determined medically qualified for separation prior to your discharge.  Even in consideration of the VA’s rating and your contention that you were improperly diagnosed, the Board found your mental health was evaluated and that you were found fit for duty prior to your administrative separation.  The Board concurred with the AO, and concluded that your discharge was proper as issued. 

It is regretted that the circumstances of your reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 

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,