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

Docket No. 5847-19 
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.

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 for Correction of Naval Records, sitting in executive session, considered your application on 31 October 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.

A review of your record shows that you entered active duty with the Marine Corps in April 2008. On 30 April 2009, medical imaging showed you suffered a tear in your Hoffa fat pad and plica syndrome in your left knee. A medical board was convened on 11 September 2008 that noted your history of right knee problems and your desire to seek civilian care for your left knee condition. As a result, you were referred to the Physical Evaluation Board (PEB) but signed an acknowledgement on 6 January 2009 declining treatment for your left knee condition. On 7 January 2009, the PEB found you unfit for continued naval service due to your left knee condition but determined your unfitting conditions were not ratable based on your refusal to accept treatment that would have returned you to duty. You accepted the PEB findings on 28 January 2009 and were discharged on 27 February 2009 without severance pay.

The Board carefully considered your arguments that the PEB erroneously denied you disability benefits based on your preexisting right knee condition. Unfortunately, the Board disagreed with your rationale for relief. The Board determined that you were properly denied disability benefits based on your decision to refuse treatment that would have returned you for full duty status. SECNAVINST 1850.4E, enclosure (3)(e), paragraph 3406 states a member is not eligible to receive disability benefits for an unfitting physical disability if the disease or injury was incurred as a result of unreasonable refusal of medical, dental, or surgical treatment. Based on this instruction and your 6 January 2009 acknowledgement that your refusal to accept treatment would result in loss of disability benefits, the Board determined the PEB findings in your case was supported by the preponderance of the evidence. There was no evidence that the PEB found you unfit based on your preexisting right knee condition. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.

Regarding your DD Form 214 and request for a change to your narrative reason for separation, Board regulations require you to exhaust your administrative remedies prior to applying to this Board for an administrative change. You must first submit a request to Headquarters, United States Marine Corps, 3280 Russell Road, Quantico, VA 22134-5103 to request that an administrative correction be made to the form consistent with the PEB findings. If you are unsatisfied with the response from the Marine Corps after you request a change to your record, you may submit another application with evidence supporting the existence of an error or injustice in your 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,