DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 2958-21 Dear This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code. 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 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 3 June 2021. 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 September 1983. In November 1987, you were determined to be 13 pounds overweight resulting in your placement in the weight control program in December 1987. After approximately three months in the program, you were involved in a motor vehicle accident where you suffered cervical and lumbar strains that was treated with physical therapy. Medical records document that you continued to feel some pain in your cervical region with physical exercise but that you possessed a full range of cervical motion with minimal discomfort. On 7 June 1988, non-judicial punishment was imposed on you for failing to attend multiple morning physical training sessions. After gaining seven pounds since being placed on the weight control program, you were recommended for administrative separation processing for weight control failure. A medical recommendation from 16 June 1988 stated that you were provided ample time to lose weight without success and it is doubtful you would ever reach Marine Corps physical standards. On 27 September 1988, you were discharged for unsatisfactory performance due to failure to conform to weight standards and assigned an Honorable characterization of service. In December 2019, the Board of Veterans Appeals granted you a service connection for cervical and lumbar spine degenerative arthritis. You also provided evidence that you were diagnosed with an adjustment disorder in January 2020. The Board carefully considered your arguments you deserve a change to your narrative reason for separation to disability. You argue that you were not fit for duty due to your weight gain that was caused by your inability to exercise due to your March 1988 motor vehicle accident injuries. You point out these injuries are now rated by the Department of Veterans Affairs (VA) at a combined 90%. Unfortunately, the Board disagreed with your rationale for relief. In order to qualify for military disability benefits through the Disability Evaluation System with a finding of unfitness, a service member must be unable to perform the duties of their office, grade, rank or rating as a result of a qualifying disability condition. Alternatively, a member may be found unfit if their disability represents a decided medical risk to the health or the member or to the welfare or safety of other members; or the member’s disability imposes unreasonable requirements on the military to maintain or protect the member. In your case, the Board determined the preponderance of the evidence does not support a finding that you met any of the criteria for unfitness at the time of your discharge for unsatisfactory performance. The Board relied on the June 1988 medical evaluations in your record which reported only occasional and minimal discomfort in your cervical and lumbar regions with a full range of motion in your cervical spine. Further, the Board found no evidence that you were precluded from performing physical training in the months leading up to your discharge. Both of these factors led the Board to conclude you were, more likely than not, fit for active duty at the time of your discharge and appropriately discharged for weight control failure by the Marine Corps based on your inability to maintain Marine Corps weight standards. Additionally, the Board was not persuaded by your arguments that your March 1988 accident somehow contributed to your weight gain since the Board noted that you were overweight and placed in a remedial weight control program several months prior to your motor vehicle accident. The Board determined that your weight gain was due to your inability to control your diet rather than an inability to exercise. The fact you were punished for failing to report to multiple physical training sessions was considered by the Board in making this finding. Finally, the Board concluded that your VA rating issued approximately 30 years after your discharge was not probative on the issue of unfitness in 1988 since too much time had elapsed since your discharge to reliably say that your post-discharge condition did not worsen over time. In making this determination, the Board also considered the fact 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. Absent additional evidence that refutes the medical evidence relied upon by the Board, they determined the preponderance of the evidence does not support a finding that you were unfit for continued naval service in 1988 or that you were erroneously discharged for failing to conform the Marine Corps weight control standards. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record. 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, 6/7/2021 Deputy Director