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

Docket No: 4247-19 
Ref: Signature Date

Dear	:

This letter is in reference to your reconsideration request dated 17 April 2019. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved. 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 the entire record, the Board found 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 for Correction of Naval Records (Board), sitting in executive session, considered your application on 30 September 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.

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 issue(s) 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 served honorably on active duty from 21 May 2001 until 28 January 2009. You subsequently affiliated with the Marine Corps Reserves where you continued to serve honorably. On 22 August 2016, a Physical Evaluation Board (PEB) found you unfit for continued naval service. You were discharged on the basis of a disability with severance pay on 30 October 2016, and received a reentry (RE) of RE-3P.

In your previous application to the Board, you requested a medical retirement instead of a discharge with separation pay.  The Board found that your disability conditions were properly rated by the PEB and denied your previous request. In your current application, you seek a change to your RE code from RE-3P to RE-1A. You state that all of the physical conditions for which you received a disability rating are no longer an issue and that you would like to continue to serve in a reserve capacity. You note that you have completed three years of extensive physical therapies, have committed yourself to overcoming your disabilities that resulted in you being found unfit for duty, and that you are pursuing a career with the Justice Department as a DEA Agent. You provide documentation from Veterans Affairs and from your PCM, which clears you to pursue your career goals with the DEA.

The Board carefully reviewed your application, your available medical records and the information reflected in your service record. The Board took into consideration your desire to return to military service as well as the medical clearance you received from the VA and from your PCM. Nonetheless, the Board noted that the RE-3P was reflective of your medical circumstances at the time of your discharge in October 2016. The Board found that the RE-3P accurately reflected your condition or disability when you were discharged from the Navy, and that despite the progress you have made over the past three years, a retroactive change to the RE- 3P is not appropriate. The Board noted that an RE-3P is a waivable code, and does not necessarily preclude you from seeking reenlistment. The Board determined that the RE-3P was properly assigned based on the PEB’s 2016 determination of your disability prior to your release from Naval duty.

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,