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

Docket No: 452-19 
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.

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, and the relevant Advisory Opinion (AO) of 9 August 2019.

You enlisted in the Marine Corps and served an honorable period of active duty from 15 March 1992 through 1 November 1996. You subsequently affiliated with the Marine Corps Reserves. In February 2008, you injured your shoulder during a drill weekend. In October 2008, you had surgery on your shoulder; in January 2009, the  determined you were able to return to work with no restrictions but could not do pull ups for a period of two months.  You were discharged from the Marine Corps Reserves in April 2009.

In your petition to the Board, you contend that you should have been placed on the Temporary Disability Retired List (TDRL) due to the shoulder injury you sustained in February 2008. You state that you were a faithful Marine who served in OIF, completed many periods of ADSW, and supported over 280 funeral details. You note that you had several more shoulder surgeries after your discharge and that you still suffer from chronic shoulder pain.

As part of the review process, the Command Judge Advocate of Headquarters United States Marine Corps, reviewed your request and issued an AO dated 9 August 2019.  The AO found that you did not provide any evidence regarding your claim that you should have been placed on the TDRL. The AO noted that there is evidence to support your claim that you sustained a shoulder injury while in a drilling status and that it was recommended that you receive orthopedic care as needed instead of going before a Medical Board or a Physical Evaluation Board.  The AO concluded that there is no evidence that the decision not to send you to a Medical Board or a Physical Evaluation Board was wrong.  Absent any additional information, the AO recommended against placing you on the disability retirement list. 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 carefully reviewed your application, the information you provided in support of your claim, your available service record, and the findings of the AO. The Board took into consideration that you were injured while in a duty status but concurred with the findings of the AO. The Board noted that in January 2009, you were able to return to work without restrictions and that your physical limitations were for two months only. Additionally, the Board found that you did not establish that your medical condition at the time of your discharge from the Reserves warranted referral to a Medical Board of a Physical Evaluation Board.  Since the decision to refer a service member to a medical board is a medical decision, the Board substantially concurred with the AO that the medical evidence does not support a finding that an error was made by not referring you to the Disability Evaluation System for your shoulder condition. Accordingly, the Board concluded that your application does not provide sufficient evidence to merit a change to your current discharge.

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,