DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8262-19 Ref: Signature Date This letter is in reference to your reconsideration request dated 5 September 2019. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved. Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious consideration of the entire record, the 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 7 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. In addition, the Board considered the advisory opinion (AO) contained in Senior Medical Advisor CORB letter 1910 CORB: 002 of 4 March 2019 and Director CORB letter 1910 CORB: 001 of 20 March 2019, and your responses to the CORB letters. You enlisted in the Marine Corps and began a period of active duty on 22 February 2010. You served in in support of Operation Enduring Freedom from January to August 2011. After your deployment, you were treated for mental health conditions through 2013, and were diagnosed with depression. Additionally, you were placed in a limited duty status as a result of a right acromioclavicular (AC) joint separation; a condition for which you later underwent surgery in June 2012. You were referred to the Physical Evaluation Board (PEB) for your AC condition in 2013. Despite your mental health limitations being included in your limited duty status, your AC condition was the only disability condition referred to the PEB. The PEB found you unfit for continued naval service on 26 March 2013 and assigned you a 10% disability rating consistent with the proposed Department of Veterans Affairs (VA) disability ratings. You were discharged from the Marine Corps on 29 June 2013, pursuant to your PEB findings with severance pay. You received an honorable characterization of service and a reentry (RE) code of RE-3P. Post-discharge, the VA issued you additional disability ratings for major depressive disorder and insomnia. You request reconsideration of NR20180003132, a previously denied petition to the Board, in consideration of your comments and responses to letters from Medical Advisory, Secretary of the Navy, Counsel of Review Boards (CORB) dated 4 March 2019, and the First Endorsement by Director, CORB dated 20 March 2019. You state that the CORB letters were not received by your counsel; your counsel has since received and responded to the CORB correspondences. Furthermore, in your original application you request correction to your separation paperwork to show medical retirement from the Marine Corps. You assert that the Medical Evaluation Board and the PEB failed to properly consider unfitting mental health conditions, as explained in the brief filed with your applications and in your counsel’s response to the CORB correspondences. You contend that there is no evidence that your medical providers considered whether to refer you to a PEB for your mental health conditions, and that the failure to refer you itself was an error or an injustice given the severity of your mental health conditions. You contend that not all of your mental health conditions were actively considered and that your low Global Assessment of Function (GAF) score of 42 as evaluated by Veterans Affairs (VA), the VA rating, and your duty limitations (no weapons, no deployment, and no overnight duty) should have been weighed when assessing your fitness for duty. The Board noted your August 2019 responses to the CORB letters, and took into account the contentions and information submitted in your original application. The Board noted that fitness for duty can take into account an individual’s ability to perform administrative tasks on limited duty in garrison, and that limitations such as no weapons, no deployment and no overnight duty were not bars to the PEB determining that you were fit for continued duty. Furthermore, the Board again noted the CORB’s observation that your mental health providers did not refer you to a PEB, suggesting that those providers did not feel your conditions warranted a PEB. Even in consideration of your assertion that your conditions were so severe that you should have been referred to a PEB, the Board applied the presumption of regularity and determined that there was insufficient evidence to establish that your mental health providers behaved erroneously or unjustly by not referring you to a PEB. Even in consideration of your August 2019 responses and taking into account the information from the original application, the Board concluded that there was insufficient evidence of unfitness for continued naval service for your major depressive disorder or insomnia to merit a change to the PEB findings or remand your case back to the PEB. Accordingly, the Board determined insufficient evidence of error or injustice exists to merit a change to your record. 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. It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken. 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. In the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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, 11/25/2019