DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8493-19 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, sitting in executive session, considered your application on 2 March 2020. 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, and relevant Advisory Opinion. Regarding your request for a personal appearance, specifically when you stated you would like to speak with a representative to close any gaps, 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 served in the Marine Corps Reserve for 17 years and 10 months, earning the grade of Staff Sergeant. You were released from a period of active duty on 28 November 2017, with an honorable characterization of service. You state that prior to your discharge, you had been approved by the Wounded Warrior Regiment to begin your third and final six-month assessment period. You contend that you prematurely and erroneously separated from the Marine Corps when you were de-activated. In your application, you ask to be reinstated into the Marine Corps Reserve, presumably on active duty orders in a Medical Hold status. Additionally, you request that you receive per diem because the orders you were offered while you were in a reserve status were 180 days or less. You assert that you never checked out of your command. You would like to be reinstated to complete the checkout process and complete the medical hold review. You note that you had just had surgery in 2017, prior to your separation from active duty and do not believe you were medically qualified to be released. On 26 February 2019, U.S. Marine Forces Central Command (MARCENT) responded to emails you sent to the leadership at MARCENT in which you took issues with the circumstances surrounding your separation as well as your subsequent discharge. MARCENT thoroughly reviewed and investigated your complaint and found that a competent medical authority conducted a final medical examination as part of the check-out process. Additionally, you were assigned a case number in the Integrated Disability Evaluation System, and the Physical Evaluation Board (PEB) provided you information about follow on medical care at the Veterans Administration (VA). Although the PEB closed your case, MARCENT noted you are still entitled to seek benefits through the VA. Furthermore, MARCENT noted that prior to your deactivation on 1 December 2017, you were offered the opportunity to return to active duty but declined to sign the required sanctuary waiver outlined in MCO 1800.11. Absent the sanctuary waiver, your were not permitted to execute orders. MARCENT stated that there is no statutory right to remain on active duty while on medical hold and medical hold does not create an entitlement to active duty retirement. MARCENT subsequently closed your complaint. As part of the review process, Headquarters Marines Corps, Military Awards Branch, reviewed your request, and issued an Advisory Opinion dated 21 January 2020. The Advisory Opinion stated that Reserve Affairs enforces the Secretaryof the Navy’s high active duty time waiver requirement through the orders approval process and follows the guidance of the Judge Advocate Division regarding medial hold exceptions to the requirement. The Advisory Opinion concluded that Reserve Affairs rightfully rejected your medical hold orders modification according to the established policy. Additionally, as you are currently affiliated in the Marine Corps Ready Reserve, the Advisory Opinion determined that your request to be reinstated into the Marine Corps is invalid. Finally, the Advisory Opinion determined that you were properly denied continued active duty orders due to your refusal to voluntarily submit a high active duty time waiver. 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 application, carefully weighed all potentially mitigating factors, including your contentions that you were denied due process and improperly separated from active duty shortly after undergoing surgery. The Board concurred with MARCENT’s findings from 2019, and with the Advisory Opinion’s conclusion. The Board found that the lack of a sanctuary waiver overrode the medical hold. The Board found that absent your submission of a high active duty time waiver, Reserve Affairs has the authority to deny your continued active duty orders. The Board also considered your claim that your individual active duty orders merited a payment of per diem that you did not receive. The Board found that without copies of the orders for which you are asserting you did not receive proper compensation and without copies of the corresponding pay records, to include your Leave and Earning Statements for the subject periods, the Board determined that there was insufficient evidence to support your request. 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 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 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,