Docket No: 7178-19 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 application on its merits. A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 18 November 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 issues 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, earning the rank of sergeant. On 30 October 1988, you were diagnosed with Bells Palsy, and subsequently evaluated by a Physical Evaluation Board (PEB). On 4 April 1991, the PEB found you unit for duty and noted that you suffered from lower back pain and spinal arthritis. You were assigned a disability rating of 10%. Your Chronological Record of Medical Care reflects a 25 April 1991 entry that states you were being processed for separation. An 8 May 1991 Radiographic Report notes that you had a slight bulge of the L5-S1 disk posteriorly without encroachment upon the thecal sac or neoroforamina. No other significant abnormalities were noted at that time. On 21 May 1991, you were discharged with an honorably characterization of service. You request an increase to your disability rating from 10% to 100%, meritorious promotion to E-9 along with associated compensation for said promotion, and back pay from the date of your retirement. You provide information about your brain surgery in August 2012, followed by your transfer from to on , with a report date of 14 January 2014. You indicate that you were found fit for duty on 1 April 2014, and received orders back to . After six months, however, your command and a Medical Board determined you should return to . While at home, you suffered two seizures and were transported to the emergency room, where you had a CT scan, X-rays, and EEGs. You state the emergency room doctor told you that scar tissue mass from your brain tumor removal was visible; you state that your treating neurologist agreed. You contend that the neurologist also indicated that had your right leg weakness been annotated as due to the removal of a tumor in the motor strip, then you would have received a 100% disability rating. You state that since retiring you have had multiple seizures and have been diagnosed with a second tumor. You further state that it has only been 2 years and 9 months since your retirement and your tumor is growing. You indicate that there is a great possibility of losing the use of your entire ride side of your body, which would leave you unable to work or care for yourself. You assert that the PEB did not receive the full story or your full medical history and you would like a chance to explain it. You provide the Board with Navy Medical Records, current VA records, and documentation from your civilian neurosurgeon. You also note that you were passed over four times for promotion to E-9/Master Chief Petty Officer. As part of the review process, the CORB reviewed your assertions and the available records, and issued an AO dated 9 September 2019. The AO found that the evidence does not support your request and noted that your 10% rating at the time of your PEB review was assigned due to unfitness related to right leg weakness. The AO also noted that post retirement, your diagnosis has shown that your brain lesion is a slow growing brain neoplasm with no significant change clinically. 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, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including your contention that the PEB did not have complete information about your condition. The Board also considered your concerns about the possibility of the ongoing and future deterioration of your condition. The Board reviewed the information you provided, the entirety of the PEB case file, and the AO. The Board noted that the PEB had access to your Naval medical records as well as the VA determination. The Board also noted that your evaluations for the period between your brain surgery and your retirement indicate that you were a leader and contributor to your command, despite having physical limitations that impacted your mobility. The Board concurred with the findings of the AO and determined that the PEB’s disability rating of 10% was consistent with the information in your medical records, aligned with the VA’s September 2014 determination of a 10% rating, and was reflective of your limitations in the performance of your military duties. The Board noted that your rating of 10% by the PEB was appropriately reflective of your condition that impacted fitness for duty (right leg weakness) at the time of your retirement, rather than the actual pathology. Accordingly, the Board found that a change in your 10% disability rating to 100% is not appropriate, nor is back pay to the date of retirement warranted. The Board concluded that the PEB’s determination that your unfitness for duty was related to your right leg weakness, not brain lesions or tumors. Furthermore, the Board found that the PEB took into consideration your 2012 brain surgery as well as the subsequent impact that lesions or tumors may have had on your performance of duty. In consideration of the evidence in your record, the PEB’s considerations, and the findings of the AO, the Board determined that no change to your 10% rating is warranted. The Board considered your request for a meritorious promotion to E-9, and found that you did not provide sufficient evidence to support that your contention that you should be promoted due to error or injustice. The Board determined that your rank of E-8 at retirement was appropriate and does not require correction. 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.