DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 5483-19 Ref: Signature Date Dear This letter responds to your application for correction of your naval record under Title 10, U.S. Code, section 1552. The Board for Correction of Naval Records (the Board) denied your requested relief on 20 September 2017 and reconsideration on 10 August 2018. On 18 November 2019, the United States District Court for the remanded your case and directed the Board to reconsider your application to the Board. The Board reconsidered your case in accordance with the court’s order and procedures that conform to Lipsman v. Secretary of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful consideration of the entire record, the Board found the evidence did not establish probable material error or injustice. Thus, your application is denied. A three-member panel, sitting in executive session, considered your application on 9 January 2020. The Board will provide the names and votes of the panel members upon request. The Board reviewed your allegations of error and injustice under regulations and applicable procedures. It considered your application, including all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies. You entered active duty with the Marine Corps on 9 August 1995 after being medically cleared for enlistment on 12 August 1994. Your entrance physical documented that you suffered mildly from pes planus but were asymptomatic at the time of the examination. After completing basic training, you reported to the School of Infantry on 27 November 1995. Two days later, you reported to medical complaining of knee pain resulting in a plantar fasciitis diagnosis and light-duty assignment. A follow-up medical examination on 8 December 1995 resulted in a pes planus diagnosis and another light-duty assignment. However, on 13 December 1995, you were medically recommended for administrative separation due to your pes planus and plantar fasciitis conditions. Your pes planus was determined to be a preexisting disability condition that was not service aggravated. On 3 January 1996, you were notified of administrative separation processing for failing to meet physical standards for enlistment due to your pes planus condition. This notification occurred approximately 148 days after your commencement of active duty on 9 August 1995. On 3 January 1996, you also received, initialed, and signed an “acknowledgement of rights to be exercised or waived during separation proceedings.” With your initials, you acknowledged “receipt of references notifying [you] of proceedings to discharge [you] by reason of erroneous enlistment on the basis of not meeting the physical standards for enlistment based on provisions of MARCORPSEPMAN, paragraph 5204.2” With your initials, you indicated that you understood that you were “being recommended for separation with an uncharacterized characterization of service and that the lease favorable characterization of service which [you] may receive is an uncharacterized characterization.” The Commanding Officer, , recommended your discharge from the Marine Corps for erroneous enlistment on 31 January 1996 based on the medical recommendation of 13 December 1995. You were eventually discharged on 13 February 1996 for erroneous enlistment with an uncharacterized entry-level separation. Your discharge from the Marine Corps occurred approximately 188 days from the commencement of your active duty on 9 August 1995. The Board denied your first application on 20 September 2017 and your request for reconsideration on 19 August 2018. The Department of Veterans Affairs (VA) rated you for bilateral pes planus on 14 February 2018 and assigned you a 0% disability rating; no other disability conditions were deemed service connected. In your current application, you submit new requests for changes to your military record in addition to your continuing request for an honorable characterization of service and change to your narrative reason for separation to “Medical Reasons” or disability. You also argue that, because you were never medically evaluated for separation, you were never discharged from the Marine Corps. Based on your assertion that you were never discharged, you request a final medical evaluation, back pay, promotions, and placement on the Temporary Disability Retirement List (TDRL). You also allege that your administrative separation documents were falsified. Unfortunately, the Board disagreed with your contentions. First, the Board determined that the preponderance of the evidence supports your uncharacterized discharge. Marine Corps Order 1900.16 provides that a Service member qualifies for entry-level status during the “first 180 days of continuous active military service.” Further, the order provides that a “separation initiated while a member is in entry level status will be described as uncharacterized, except in the following circumstances: (a) When separation for misconduct, fraudulent enlistment, or homosexuality is authorized and when characterization under other than honorable conditions is warranted by the circumstances of the case; or (b) When separation in lieu of court-martial is authorized and when characterization under other than honorable conditions is warranted by the circumstances of the case: or (c) When characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of military duty, and is approved on a case-by-case basis by the Secretary of the Navy. In examining your military record, the Board found that you were in an entry-level status when your administrative separation was initiated. The Board determined that the 3 January 1996 notification to you of “Notification of Separation Proceedings” was when your separation was initiated. Based on your active-duty start date of 9 August 1995, the Board found that your separation was initiated within the first 180 days of continuous active military service (148 days) thus warranting your uncharacterized discharge. The Board next examined your record to determine whether you met the criteria for any of the exceptions authorizing assignment of a characterization of service for those in an entry-level status. They found no evidence to support any of the exceptions, since your military record was unremarkable except for the fact you suffered from a preexisting bilateral foot condition that was determined to be not qualifying for enlistment. The Board found no evidence of unusual circumstances related to conduct or performance that would clearly warrant an honorable characterization of service or a referral to the Secretary of the Navy for consideration. In making this finding, the Board relied on the 23 January 1996 statement from the Commanding Officer, Marines Awaiting Training Company, Headquarters Support Battalion, that you were “squared away” but that your conduct “has been unremarkable.” Likewise, your second platoon sergeant’s statement that you were “a productive as well as positive Marine” does not demonstrate the presence of unusual circumstances involving personal conduct and performance of military duty that would clearly warrant an honorable characterization of service for an entry level separation. Therefore, based on the preponderance of the evidence, the Board determined that your uncharacterized discharge was appropriately assigned to you in 1996. Second, the Board examined your claim for a disability discharge in lieu of an erroneous enlistment discharge. Again, the Board determined that the preponderance of the evidence did not support relief. Title 10, United States Code, Section 1203 allows for a Service member to be separated for a disability condition if the member is “unfit to perform the duties of the member’s office, grade, rank, or rating because of a physical disability incurred while entitled to basic pay.” SECNAVINST 1850.4C defines incurred while entitled to receive basic pay as to the date or time when a disease or injury is contracted or suffered, as distinguished from a later date, when the DES determines that a member has become unfit for duty as a result of such disease or injury. Physical disability due to natural progression ofdisease or injury is ‘incurred’ at the time the disease or injury causing the disability is contracted. When the increase in physical impairment during service is in excess of that due to natural progression of the disease or injury, then the increase is due to aggravation by service. In applying these requirements to the facts of your case, the Board concluded that your bilateral pes planus condition was not incurred while you were entitled to receive basic pay nor was your condition service aggravated. The Board relied on several pieces of evidence in making their findings. Specifically, they determined your bilateral pes planus condition preexisted your entry onto active duty based on your entrance physical of 12 August 1994 that documented your condition approximately 12 months prior to the commencement of your period of active duty. Additionally, they found that your pes planus condition was not service aggravated based on the medical findings of 13 December 1995. In those findings, your pes planus condition was medically determined not to have been aggravated by your active service. The Board also considered the fact that your pes planus condition was rated at 0% by the VA in 2018. In their opinion, this was further evidence that your pes planus had not increased in impairment during your active-duty service in excess of that due to the natural progression of the condition. Therefore, absent medical evidence to the contrary, the Board concluded that the preponderance of the evidence did not support a finding of service aggravation. The Board also considered whether there was evidence of any other disability condition that would have qualified you for a disability discharge. They found insufficient evidence, however, to support a finding that you were unable to perform the duties of your office, grade, rank or rating as a result of any qualifying disability condition. The Board relied on the 2018 VA findings that rated your only service-connected disability condition at 0% approximately 21 years after your discharge from the Marine Corps. Based on their findings that your pes planus condition preexisted your entry into the Marine Corps and progressed in natural progression to prevent you from completing your required training, the Board determined that you did not qualify for a disability discharge. The Board found no evidence that you suffered hairline or stress fractures to your feet. Further, based on the medical recommendation of 13 December 1995 and your commanding officer’s recommendation of 31 January 1996, the Board found you were properly discharged for erroneous enlistment based on your pes planus condition that prevented you completing your initial training. Based on your preexisting pes planus and resulting symptoms that arose during your training from your condition, the Board found that you were erroneously enlisted in the Marine Corps due to your pes planus condition. Third, the Board considered whether you were improperly discharged based on your allegation that you never received a separation physical. The Board found the preponderance of the evidence did not support your allegation. In reviewing your military record, the Board noted that, in the 31 January 1996 Commanding Officer, School of Infantry, letter to the Commanding General, Marine Corps Base, he states that “PrivateFirst Class received a separation physical on 3 January 1996.” In the Board’s opinion, absent evidence to the contrary, this was sufficient to find you received a separation physical prior to your discharge on 13 February 1996 and were properly discharged from the Marine Corps. Based on this finding, the Board concluded that you were not entitled to back pay, promotions, or any other benefit associated with your claim that you were not properly discharged. Finally, the Board considered your allegations that the Marine Corps committed fraud by falsifying your record to discharge you for erroneous enlistment. The Board, however, concluded that the preponderance of the evidence does not support your allegation. The Board relied on the 3 January 1996 “Acknowledgement of my rights to be exercised or waived during separation proceedings.” In that document, as indicated previously, you acknowledged the notification of “discharge proceedings to discharge me by reason of erroneous enlistment on the basis of not meeting the physical standards for enlistment based on the provisions of MARCORSEPMAN paragraph 6204.2.” The document contains multiple initials and your signature acknowledging the basis for your administrative separation and your associated rights. The Board found that this was strong evidence that you were properly notified that you were being discharged for erroneous enlistment and consistent with all other administrative separation documents submitted to the separation authority in support of your discharge. Based on these findings, and the lack of a rational reason for the Marine Corps to defraud you, the Board determined that insufficient evidence exists to find you were fraudulently discharged for erroneous enlistment without your knowledge. The Board regrets that the circumstances of your case are such that favorable action cannot be taken at this time. 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. 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 show the existence of probable material error or injustice. Sincerely,