DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8443-19 Ref: Signature Date 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 9 December 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 Navy Reserve on 16 September 2005, and continued your reserve service through 2015, when you were honorably discharged. Your record indicates that in April 2015, notified you by email that due to you having undergone surgery, your initial medical board was delayed pending resolution of your physical therapy prognosis and limited duty status. On 18 April 2015, Commanding Officer, notified you of your discharge from the United States Navy Reserve and that you were not eligible for immediate reenlistment. In your application for correction you state that you missed several drill weekends in 2014 and 2015, which caused the Navy to separate you. You contend that you were told by the NOSC that due to periods of active duty in 2012 and 2013, you could miss 180 days of drill. You also state that you started an LOD file on 24 February 2014, which was approved. You provide emails from the Medical Department at which indicate that an LOD was opened on 24 February 2014, and as of 11 April 2014, was still in process. An email dated 2 June 2014 indicates that a Chief stated Medical indicated you should be coming to drill in a light duty status, and since you were not attending drill, you were receiving unauthorized absences. You were queried as to whether you were being told something different. You appear to have stated that you were in contact with a judge advocate in who would be “representing” you and you were advised not to return the paperwork that the NOSC sent you until the lawyer got in touch with you. Nothing further was provided by you or reflected in your record regarding possible representation by counsel during your time in the Navy Reserve. You request a medical review board so that you can medically retire. You state that you suffered two traumatic brain injuries which were incurred in 2009 and 2013, respectively, while you were entitled Inactive Duty Training pay and Active Duty pay, that you suffer from Post Traumatic Stress Disorder, that you had surgery on your left shoulder due to a service connected injury from a deployment in 2013, and that you had two non-service connected heel surgeries. You have been found 100% disabled by Veterans Affairs (VA). The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including your contention that you were entitled to a medical board during your time in the Navy Reserve. The Board noted that your available record does not contain an administrative discharge package, but that a communication dated 19 March 2015, indicates that you requested a CD of your official military personnel file because the Navy was “trying to administratively separate (you).” A review of your Statement of Service as retained by Navy Personnel Command shows that you earned a total of 252 qualifying retirement points from September 2011 to September 2012, 179 of which were on AT/ADT. From September 2012 to September 2013, you earned 365 qualifying retirement points. From September 2014 to April 2015, however, you earned 9 qualifying retirement points. Your Statement of Service shows a marked decrease in participation in the Reserves from September 2014 to April 2015, which could be a basis for initiating administrative separation proceedings on the basis of unsatisfactory participation. The Board noted that SECNAVINST 1850.4 series states processing for administrative discharge for misconduct take precedence over processing for disability. Even in consideration of your assertion of entitlement to a medical board while in the Navy Reserve and taking note of the available communications from NOSC , the Board found that your record indicates that you were not participating satisfactorily, which could have precluded you from the disability evaluation process. Absent evidence indicating that the NOSC acted erroneously or unjustly, the Board concluded that your discharge from the Navy in 2015 does not merit corrective action to permit you to appear before a medical board. 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, 1/27/2020