JRE
Docket No. 05469-07
22 May 2008

This is in reference to your application for correction of your naval record pursuant to the provisions of title 10 of the United States Code, section 1552.

A three—member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 22 May 2008. 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, your naval record and applicable statutes, regulations and policies.

After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.

You enlisted in the Marine Corps on 12 March 1999 at age twenty six. You underwent medical screening on 12 April 1999, and were advised that you were considered qualified for separation. You were advised that if you believed you were not qualified, a medical officer would evaluate your claim. It does not appear that you made such a claim. You were discharged from the Marine Corps on 6 May 1999, with an entry level separation, by reason of homosexual admission.
The Board did not accept your contention to the effect that you admitted to homosexual activity because you were severely ill with undiagnosed and untreated tuberculosis, and felt that you had to procure an expeditious discharge from the Marine Corps in order obtain proper medical care. Your record shows that on 29 March 1999, you reported to a branch medical clinic complaining of a two day history of a stuffy nose, sore throat and cough. Your temperature was taken and found to be normal, and you denied having a headache, nausea, vomiting, lightheadedness and dizziness. Physical examination revealed that your lungs were clear and without rales, rhonci, wheezes or rubs. Positive physical findings included a slightly swollen left nostril and tonsil, and a heart murmur at the to the intercostal space, which was apparently related to a ventral septal defect (VSD), a heart condition for which you had received a medical waiver during your enlistment processing. Your condition was assessed as an upper respiratory infection, and you were prescribed acetaminophen, a combined expectorant and decongestant medication, and throat lozenges. A medical record entry dated 2 April 1999 indicates that you were seen on that date for complaints of a foot fungus, numbness of your extremities, cold symptoms, and a nonproductive cough which had caused chest pain. You reported that you were allergic to aspirin, penicillin and another antibiotic. Physical examination disclosed reddened tonsils with pustules and exudates, and clear lungs. Your conditions were assessed as an VSD, upper respiratory infection, and athlete’s foot. You were told to continue to use the expectorant/decongestant medication and acetaminophen, and vitamin B—6 and an antifungal medication were prescribed.

The absence of any health record entries concerning coughing-up of bloody mucus strongly suggests that the coughing was not observed or reported, or that did not occur. The fact that you underwent a course of treatment for tuberculosis that was completed on or about 8 January 2003 does not demonstrate that you suffered from tuberculosis while you were on active duty in 1999. The Board concluded that one of the following two things occurred in your case: 1) you lied in 1999 in order to fraudulently procure your discharge, which, is criminal offense under the Uniform Code of Military Justice, or 2)’you lied in your application to fraudulently procure a correction of your naval record, which is a violation of title 18, U.S Code. The Board concluded that, in either case, it would not be in the interests of justice to recommend corrective action in your case. Accordingly, your application has been denied. The names
and votes of the members of the panel will be furnished upon request.

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 and material evidence or other matter not previously 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,

W.	DEAN PFEIFFER
Executive Director