Docket No 3317-21

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 17 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 Reserve in January 1995. Your entrance physical did not document any foot issues.  However, after reporting foot pain symptoms, you were diagnosed with Genu Varum (bowed leg), Hallux Valus (Hammer Toes), Patella Tendonitis and Pes Planus on 18 April 1995.  All your conditions were determined to exist prior to entry and resulted in a recommendation for administrative separation for erroneous enlistment.  You were eventually discharged on 4 August 1995 for erroneous enlistment with an uncharacterized Entry Level Separation.  On 22 July 2020, your medical provider submitted an opinion that your Hallux Valgus condition was likely caused by your military service.  This Board denied your request to change your narrative reason for separation to disability on 29 October 2020.  You provided excerpts from your medical record as new evidence along with a request to upgrade your characterization of service to Honorable. 
 
The Board carefully considered your arguments for reconsideration including changing your narrative reason for separation to disability and upgrading your characterization of service to Honorable.  You argue that there is no medical documentation to support a finding that your medical conditions existed prior to entry and that the 18 April 1995 medical report only acknowledges your current diagnosis.  Unfortunately, the Board disagreed with your rationale for relief. 
 
In reviewing the evidence in your case, the Board concluded that the preponderance of the evidence does not support changing your narrative reason for separation.  Despite your argument that there is no medical evidence to support a finding that your foot conditions preexisted your entry into the Marine Corps Reserve, the Board noted that the 6 June 1995 medical recommendation for separation determined that your conditions existed prior to entry and were not service aggravated.  The Board also agreed with its prior rationale that Pes Planus and Hallux Valus are both conditions that develop over a period of time.  Since your symptoms manifested within several months of commencing active duty, the Board concluded, it was more likely than not, that you possessed those disability conditions prior to entering the Marine Corps Reserve and developed symptoms after being exposed to the physical requirement associated with Marine Corps training.  In weighing the contradicting medical evidence from 1995 and 2020, the Board determined that medical evidence issued contemporaneously with your active duty service was more reliable that a medical opinion issued 25 years after your discharge.  Finally, when determining the best medical evidence in your case, the Board felt the medical opinion issued by Commanding Officer, Naval Hospital, Camp Lejeune deserved more weight than the generic medical opinion issued by a non-orthopedic nurse practitioner.   
 
Regarding your request for a characterized discharge, the Board determined the preponderance of the evidence does not support relief.  In considering the facts of your case, the Board found your uncharacterized discharge proper since you were recommended for discharge within the first 180 days of consecutive active duty.  By regulation, servicemembers who are processed for administrative separation within their first 180 days of consecutive active duty, are designated as entry level separations.  Entry-level separations are required to be issued an uncharacterized discharge unless exceptional circumstances exist that require for an exception to policy determination by the Secretary of the Navy.  After considering your record, the Board found no exceptional circumstances in your case to merit a change to your uncharacterized discharge since you were discharged while in your initial training pipeline with no remarkable circumstances to distinguish your record.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
The Board determined that your personal appearance, with or without counsel, would not materially add to their 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 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, 
6/18/2021
Deputy Director