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 relevant portions of your naval record and your application, 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 case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 13 August 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.  In addition, the Board considered the advisory opinion contained in Psychiatric Advisor CORB letter 1910 CORB: 002 of 20 May 2020 and Director CORB letter 1910 CORB: 001 of 28 May 2020 along with your response to the opinions. 
 
A review of your record shows that you entered active duty with the Marine Corps in October 2009.  You were exposed to an Improvised Explosive Device (IED) explosion while deployed to  in June 2012 and reported mental health symptoms upon returning from deployment.  As a result, you commenced mental health treatments in July 2013 that resulted in your placement on limited duty for Major Depressive Disorder.  On 2 December 2013, you were returned to full duty status after it was determined your Depressive Disorder was in remission.  In January 2014, you were seen by Neurology based on concussion symptoms believed to be connected to your IED exposure.  You underwent a Magnetic Resonance Imaging scan that was non-specific in its findings but resulted in a diagnosis of Headache Syndrome.   In the months leading up to your discharge, you were seen multiple times by mental health and deemed fit for full duty.  You were also evaluated by a second Neurologist that eventually concluded you were also fit for duty.  Based on a separation physical that cleared your for discharge on 28 July 2014, you were released from active duty on 31 July 2014 at the end of your obligated active service.  Post-discharge, the Department of Veterans Affairs (VA) assigned you a 30% rating for Major Depressive Disorder, 30% for Migraines, and 0% for Traumatic Brain Injury (TBI) in 2014.  Your mental health disability rating was increased to 70% in 2016. 
 
The Board carefully considered your arguments that you should have been placed on the disability retirement list for Major Depressive Disorder and Migraine Headaches resulting from TBI.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinions in your case.  Specifically, the Board determined the medical evidence did not support a finding that you were unfit for continued naval service at the time of your discharge from the Marine Corps. 
 
In order to be eligible for placement on the disability retirement list, a service member must be unfit for continued naval service due to a qualifying disability condition.  Unfitness is defined as a service member’s inability to perform the duties of their office, grade, rank or rating due to a disability condition.  The determination of whether a service member is unfit and requires processing through the Disability Evaluation System is a function performed by military medical providers who evaluate service members.  Medical providers must conclude that a qualifying disability condition exists and creates a substantial enough occupational impairment to merit consideration by the Physical Evaluation Board (PEB).  Those service members who are determined to suffer from a sufficient occupational impairment are referred to the PEB via a medical board process convened by the medical providers.  In your case, none of your medical providers concluded that your disability conditions created a sufficient occupational impairment to prevent you from performing the duties of your office, grade, rank or rating.  Despite being seen by multiple providers for your all your different symptoms and disability conditions, you were never referred to the PEB based on medical determinations that you did not merit a referral.  In making their finding that you were not unfit for continued naval service, the Board relied on these medical provider determinations that you were fit for full duty at the end of your enlistment despite the existence of your various symptoms.  In addition, the Board relied on the 28 July 2014 separation physical that also found you fit for separation.  The Manual of the Medical Department Chapter 15-20 requires separation examinations and evaluations for active duty members and states “comprehensive evaluations are conducted for the purposes of ensuring that Service members have not developed any medical conditions while in receipt of base pay that might constitute a disability that should be processed by the Physical Evaluation Board (PEB) and to ensure Servicemembers are physically qualified for recall to additional periods of active duty.  Thus, the standards for being physically qualified to separate are the same as those being qualified to continue active duty Service … .”  Despite your arguments that you were unable to perform your duties due to your disability conditions, since you were found medically qualified for continued active duty three days prior to your discharge, the Board concluded this was also strong evidence of fitness for active duty at the time of your discharge.   
 
The Board also considered your arguments regarding the advisory opinion’s improper emphasis on the mental health notes regarding a possible personality disorder but did not find it persuasive.  In the Board’s opinion, you underwent extensive mental health treatment and evaluation between July 2013 and July 2014 that fully documented your level of impairment.  The Board found that your mental health status was properly evaluated based on the number of mental health appointments you attended and the level of reporting documented in your record.   Therefore, despite your disagreement with your medical provider findings, the Board found no reasonable basis to discount their medical opinions regarding your mental health diagnoses or fitness for duty.  Similarly, the Board found no basis to conclude the findings of your Neurology providers to be erroneous.   
 
Finally, the Board took into consideration your VA ratings for your disability conditions.  However, the Board determined these ratings did not outweighed the medical evidence of your fitness contained in your active duty medical records.  Additionally, the Board considered that eligibility for compensation and pension disability ratings by the VA is tied to the establishment of service connection and is manifestation-based without a requirement that unfitness for military duty be demonstrated.  In the Board’s opinion, this lessened the probative value of your VA ratings when direct evidence of fitness for duty was present in your record.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
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,