DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 9566-19 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 case on its merits. A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 16 January 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. A review of your record shows that you entered active duty with the Marine Corps in August 1968. On 24 July 1968, a congressional inquiry was initiated based on your parents’ concern regarding your allergy condition and potential duty assignment. As part of the inquiry, two letters from medical providers were enclosed documenting your long history with asthma since infancy and results of a recent allergy test that indicated severe allergies to several substances. Based on the inquiry, you were recommended by the Bureau of Medicine and Surgery (BUMED) to undergo a pulmonary evaluation on 12 September 1969. However, you were hospitalized on 8 October 1969 for asthma related symptoms prior to your evaluation. On 22 October 1969, you were hospitalized in order to be evaluated as recommended by BUMED. During this evaluation, you revealed a childhood history of hypersensitivity to multiple allergens. Subsequently, a medical board diagnosed you with asthma and determined your condition existed prior to your entry into the Marine Corps. After you acknowledged the medical board findings, you were discharged on 21 November 1969 for a physical disability without severance pay. Post-discharge, you were rated by the Department of Veterans Affairs (VA) for a service connected disability condition. The Board carefully considered your arguments that you deserve military disability benefits based on the VA’s decision to assign you a disability rating and your assertion that you were exposed to hazardous chemicals while on active duty. Unfortunately, the Board disagreed with your rationale for relief. First, the Board concluded your asthma condition preexisted your entry into the Marine Corps based the 19 July 1969 letter from your medical provider that documents your long history of asthma from your infancy. The Board found the preponderance of the evidence supports this finding despite the fact you may have been asymptomatic at the time of your enlistment since you developed asthma symptoms less than two years after the commencement of active duty. Second, the Board concluded your asthma condition was not aggravated by your active duty service. Service aggravation occurs when a disability condition worsens in severity beyond its natural progression. In your case, the Board found no evidence to support such a finding. Despite your hospitalization in October 1969 for asthma symptoms, it appears you were released approximately five days later and found fit for duty. In the Board’s opinion, this was insufficient evidence to support a finding that your asthma progressed beyond its natural progression while you were on active duty. Third, based on the Board’s findings that your condition existed prior to your entry into the Marine Corps and was not aggravated by your active duty service, they also determined that you were properly discharged without disability benefits by the Marine Corps. Service members discharged for preexisting disability condition, not aggravated by active duty service, do not qualify for military disability benefits. Therefore, the Board found no error with your narrative reason for separation. Fourth, regarding your assertion that you were exposed to hazardous chemicals while on active duty and entitled to disability benefits based on a presumption, the Board did not agree with your rationale for relief. Since the Board found that your asthma condition preexisted your entry into the Marine Corps and was not aggravated by your active duty service, they concluded any presumption of exposure would have no bearing on your eligibility for military benefits. Finally, the Board did not find your VA rating probative to the issue of your eligibility for military benefits since they found substantial evidence your asthma condition did not meet the requirements for military disability benefits. Further, the Board concluded that VA service connection determinations are not binding on the Department of Defense. Therefore, while the Board empathizes with your current medical condition, they felt compensation and treatment for your disability condition fall outside the scope of the Department of Defense disability system and under the purview of the VA. 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, 1/19/2020 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 Finally, the Board did not find your VA rating probative to the issue of your eligibility for military benefits since they found substantial evidence your asthma condition did not meet the requirements for military disability benefits. Further, the Board concluded that VA service connection determinations are not binding on the Department of Defense. Therefore, while the Board empathizes with your current medical condition, they felt compensation and treatment for your disability condition fall outside the scope of the Department of Defense disability system and under the purview of the VA. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record. Fourth, regarding your assertion that you were exposed to hazardous chemicals while on active duty and entitled to disability benefits based on a presumption, the Board did not agree with your rationale for relief. Since the Board found that your asthma condition preexisted your entry into the Marine Corps and was not aggravated by your active duty service, they concluded any presumption of exposure would have no bearing on your eligibility for military benefits. Third, based on the Board’s findings that your condition existed prior to your entry into the Marine Corps and was not aggravated by your active duty service, they also determined that you were properly discharged without disability benefits by the Marine Corps. Service members discharged for preexisting disability condition, not aggravated by active duty service, do not qualify for military disability benefits. Therefore, the Board found no error with your narrative reason for separation. Second, the Board concluded your asthma condition was not aggravated by your active duty service. Service aggravation occurs when a disability condition worsens in severity beyond its natural progression. In your case, the Board found no evidence to support such a finding. Despite your hospitalization in October 1969 for asthma symptoms, it appears you were released approximately five days later and found fit for duty. In the Board’s opinion, this was insufficient evidence to support a finding that your asthma progressed beyond its natural progression while you were on active duty. The Board carefully considered your arguments that you deserve military disability benefits your rationale for relief. First, the Board concluded asthma from your infancy. Docket No. 9566-19 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, 1/19/2020 3