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


Docket No: 8821-19
Ref: Signature Date 

Dear

This letter is in reference to your reconsideration request dated 18 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, sitting in executive session, considered your application on 3 February 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.
 
You enlisted in the Marine Corps and began a period of active duty on 23 April 2012.  During basic training you suffered a stress fracture, but you recovered after a period of rehabilitation.  You then began training at the School of Infantry, where you suffered a second stress fracture.  On 24 January 2013, you were discharged from the Marine Corps on the basis of a Condition not a Disability, with an honorable characterization of service and a reentry (RE) code of RE-3P.  Following your discharge, the Department of Veterans Affairs (VA) issued you a combined disability rating of 20%. 

In your petition for reconsideration to the Board, you state that the VA believes that you should have been medically discharged rather than discharged with an honorable characterization on the basis of a Condition not a Disability. You contend that discharging military doctors believed your pain was solely from a condition in your femurs and that the pain would go away.  You add that the pain never went away, however, and you have been diagnosed by the VA with a service-connected progressive hip condition for which you now have a 20% disability rating. 

The Board, in its review of your entire application, carefully weighed all potentially mitigating factors, including your contention that you did not understand the process until you found a non­profit that helped you apply for VA treatment in 2016.  The most recent consideration by the Board, in 2017, denied your request because the Board was not convinced that your injury was of such a nature and degree of severity as to have interfered with your ability to adequately perform your duties.  On your request for reconsideration, the Board concurred with its previous findings. The Board considered the VA’s disability determination, your claim that you were unjustly subjected to a discharge on the basis of a Condition not a Disability, and your contention that you are entitled to a medical separation, but found that there is not enough evidence to establish that your stress fracture injuries impacted your fitness for duty and merited a medical separation or retirement under SECNAVINST 1850.4 series.  The Board determined, therefore, that your honorable separation on the basis of a Condition not a Disability is neither erroneous nor unjust. 

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,