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

Docket No. 5346-19 
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 relevant portions of your naval record and your application, 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, sitting in executive session, considered your application on 2 July 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. In addition, the Board considered the advisory opinions contained in Senior Medical Advisor CORB letter 1910 CORB: 002 of 28 April 2020 and Director CORB letter 1910 CORB: 001 of 12 May 2020; copies of which were previously provided to you for comment.
 
A review of your record shows that you entered active duty with the Marine Corps in August 1996.  During your career, you deployed to Kuwait and twice to Iraq.  During your 2006-2007 deployment to Iraq, you were exposed to an Improvised Explosive Device explosion.  In 2009, you underwent a corneal transplant due to your Keratoconus condition that made you unfit for continued naval service.  The Physical Evaluation Board (PEB) found you unfit in June 2010 and assigned you to the Temporary Disability Retirement List (TDRL) with a 40% disability rating.  After a periodic TDRL examination determined your second corneal transplant had improved your eye condition, your disability rating was reduced to 0% by the PEB om 2015 and you were discharged with severance pay.  Your post-discharge record documents that you worked for the U.S. Postal Service until 2018 when you were hospitalized for Post-Traumatic Stress Disorder (PTSD) symptoms.  The Department of Veterans Affairs (VA) rated your PTSD condition at 50% in 2017 and increased the rating to 70% in 2018.
  
The Board carefully considered your arguments that you deserve to be placed on the disability retirement list for your eye condition and have your PEB findings changed to reflect that your disability condition was the result of a combat related injury as defined by Title 26, United States Code, Section 104(b)(3). Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinions contained in Senior Medical Advisor CORB letter 1910 CORB: 002 of 28 April 2020 and Director CORB letter 1910 CORB: 001 of 12 May 2020.  Specifically, the Board concluded that you did not qualify for continued placement on the disability retirement list since your eye condition improved significantly after your second corneal transplant and your PTSD symptoms were not unfitting at the time of your discharge from the Marine Corps.  Regarding your PTSD condition, while the Board noted that your symptoms worsened to the point you were hospitalized in 2018, they agreed with the advisory opinion that this occurred approximately three years after your release from the TDRL and after several years of employment with the U.S. Postal Service.  As a result, in the Board’s opinion, the preponderance of the evidence did not support a finding that you were unable to perform the duties of your office, grade, rank or rating due to PTSD at the time of your discharge from the Marine Corps.  Additionally, the Board did not find your arguments of an injustice persuasive since the circumstances of your case are similar to countless of other service members who suffer from disability conditions in the service of their country.  In their opinion, you are being properly compensated by the VA for your service connected disability conditions with tax-free compensation and free health care.  So, while the Board empathizes with your current medical condition, they felt compensation and treatment for your disability conditions fall outside the scope of the Department of Defense disability system and under the purview of the VA.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.  

Regarding your request to change your PEB combat-related findings, Board procedures require you to exhaust your administrative remedies prior to applying to the Board.  The Board found no evidence that you applied to the Navy Judge Advocate General (JAG) to appeal the PEB decision. A determination by the PEB that a disability did not result from a combat-related injury may be appealed to the JAG.  The appeal shall be by letter addressed to the Judge Advocate General of the Navy (Code 131), Washington Navy Yard, 1322 Patterson Ave SE, Suite 3000, Washington, DC 20374-5066 and shall set forth the reasons why you disagree with the combat-related determination of the PEB.  If you are denied relief, you may reapply to this Board with evidence of the JAG decision in your case.  

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.  

Sincerely,