DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORD
X
2 NAVY ANNE
WASHINGTON DC 20370.510
0
S
JRE
Docket No: 4718-99
20 July 2001
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 12 July 2001. 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.
In addition, the Board considered the advisory
opinion furnished by the Director, Naval Council of Personnel Boards dated 5 January 2001,
and the Head, Enlisted Promotions Branch, Headquarters, U.S. Marine Corps. dated 13
March 2001, and the information you submitted in response thereto. A copy of each opinion
is attached.
The Board’s review of your application was hampered by the fact that you waited almost
thirty years to apply for corrective action, and not all pertinent records, such as your
complete disability evaluation proceedings and related medical records, can be located. In
addition, the Board noted that although you state you discovered the alleged errors and
injustice in your records in 1998 or 1999, you were aware of the disparity between the Navy
and Veterans Administration ratings in 1970, and you submitted a series of claims for
substantial increases in combined VA ratings beginning in 1992. Notwithstanding the
foregoing, the Board waived the statute of limitations, and considered your application on its
merits.
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.
In this connection, the Board substantially concurred with the comments contained
in the advisory opinions. It was not persuaded that you were entitled to ratings for additional
conditions, or higher ratings for those conditions previously rated by the Navy.
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
Enclosure
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROA
D
QUANTICO, VIRGINIA 22 134-S 103
.
IN REPLY REFER
TO:
1400/3
MMPR-2
13 Mar 01
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS
ADVISORY OPINION
IN THE CASE OF FORMER
-
‘
a retired Marine indicates that he completed his
he grade of probationary corporal and should have
been promoted to the grade of sergeant prior to his retirement from
the Marine Corps on 22 July 1968.
We reviewed\
service record book and found
that indicate that he failed to meet the required
2.
official documents
cutting score of 124 for promotion to
composite score was 122.
higher grade,
recommended for promotion by his commanding officer for the grade to
which appointed.
Marine Corps on 22 July 1968 at the highest grade he held,
We recommend his petition be denied.
In order to receive promotion to the next
a Marine had to meet the required cutting score and be
Corporal Guerra was medically retired from the
a'-
sergeant,for 1 April 1968.
His
L
Promotion Branch
By direction of
the Commandant of the Marine Corps
DEPARTMENT OF THE NAVY
NAVAL COUNCIL OF PERSONNEL BOARDS
WASHINGTON NAW YARD
720
KENNON STREET SE RM 309
WASHINGTON, DC 20374-5023
5420
Ser: 01-03
5 Jan 2001
Director, Naval Council of Personnel Boards
Executive Director, Board for Correction of Naval Records
SE OF FORMER
(a) Chairman, BCNR JRE:jdh DN: 4718-99
(b) SECNAVINST
1850.4D
ltr of 20 October 00
From:
To:
Subj:
‘ Ref:
This responds to reference (a) which requested comments and a
1.
recommendation regarding petitioner's request for correction of his records
to show that he was entitled to a 100 percent disability rating at the time
of his medical retirement from the naval service in 1968. We have determined
that the evidence in this case does not support the petitioner's request for
a change to records to reflect entitlement to an increased disability rating.
The petitioner's case history, contained in reference (a), was thoroughly
2 .
reviewed in accordance with reference (b) and is returned. The following
comments and recommendations are provided.
a. Petitioner suffered combat wounds (left shoulder, scapula, clavicle,
These injuries resulted in his placement on the
humerus, and right leg) incident to military service in the Republic of
Vietnam in January 1968.
Temporary Disability Retired List (TDRL) and subsequent transfer to the
Permanent Disability Retired List (PDRL) with a 40 percent disability rating
by the Physical Evaluation Board (PEB) in 1970. Since that time, petitioner
has reportedly suffered from numerous deteriorative sequellae in multiple
systems for which he obtained Department of Veterans Affairs (DVA)
evaluations beginning in 1992.
These DVA evaluations resulted in petitioner
receiving increased compensation from the DVA due to the service connection
of his injuries.
The case file does not contain a copy of the PEB finding that
b. In the 1996 timeframe, petitioner applied to the DVA contending that
the PEB had erred in the disability rating originally assigned to petitioner
in 1968.
placed the member on the TDRL in 1968. Notwithstanding, the available
records (circa 1968-1970) do suggest that petitioner's conditions were
properly rated by the PEB in 1970 and were consistent with the physical
examination findings noted in the corresponding TDRL evaluation. There
appears to be no evidence of a ‘flail shoulder"
- indeed, closer to the
opposite
appears to have improved somewhat over that recorded in the initial September
1968 VA compensation and pension physical examination. Petitioner also
appears to have made a reasonable occupational adjustment considering the
severity of his impairments.
Overall, one is left with the impression that a
very untoward subsequent turn of events resulted in considerable physical and
emotional hardship for petitioner.
- in terms of restricted range of motion. However, even the latter
\
.
Subj:
/
I
E OF FORMER
In summary, the evidence in this case is insufficient to warrant a change
3.
to the 1970 PEB findings.
request is recommended, BCNR may wish to obtain a second opinion from the
Bureau of Medicine Orthopedic Specialty Leader.
Accordingly, while denial of the petitioner's
2
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