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NAVY | BCNR | CY2006 | 07928-06
Original file (07928-06.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVY
                  BOARD FOR CORRECTION OF NAVAL RECORDS
                  2 NAVY ANNEX
                  WASHINGTON DC 20370~5 100
          JRE
Docket No. 07928-06
         12 June 2007
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 7 June 2007. 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, it considered an advisory opinion dated 4 May 2007 that was furnished by Headquarters Marine Corps.

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 regard, the Board was not persuaded that the notification of the preliminary findings of the Physical Evaluation Board (PEB) was mailed to an incorrect address. The Board noted that the findings were mailed to you at an address in Chattsworth, California with a zip code of 91311, and was unclaimed.

The recommendation that you be permanently retired because of your continued “susceptibility to heat injury” that was made by the physician who conducted your final periodic examination was not binding on the PEB, as the assignment of disability ratings is a matter within the purview of the PEB rather than examining or treating physicians. The Board was not persuaded that your susceptibility to heat injury warranted a rating in excess of the 0% rating assigned by the PEB, or that you were entitled to a disability rating for a cognitive disorder or headaches.











In view of the foregoing, 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,
Enclosure



































































DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
                                                      QUANTICO, VIRGINIA 221 34




                                    IN REPLY REFER TO:
                                                                                                    741 MMSR-4
                                                                                                   4 May 07
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    BCNR APPLICATION IN THE CASE OF
          XXX      X        USMC, FORMER SERGEANT

 Ref:     (a) MMER Route Sheet of 15 Mar 07, Docket No. 07928-06
         

         1.       The reference requests an advisory opinion on Mr. P etition to correct his record to show that he be permanently retired was placed on the Temporary Disability Retired List (TDRL) on 1 January 2003. He was then rated at 0 percent by the Physical Evaluation Board (PEB) on 24 May 2006 and was discharged from the TDRL with entitlement to severance pay on 1 July 2006.
3.       Before a final determination is made, each Marine who is determined to be Unfit by the PEB is notified of the preliminary findings by certified mail and afforded the opportunity to refute any findings or evidence used to make the determination.
4. From a review of      r ecord, it shows that the preliminary findings in his case were mailed on 27 April 2006 and were returned to the PEP on 23 May 2006 as undeliverable. As a result, the findings in his case were accepted by default. Prior to his final evaluation, Mr. notified this Headquarters of his new mailing address. Through exhaustive research it could not be confirmed to which address the preliminary findings were mailed.
5.       This Headquarters defers further comment to the PEB.
6.       Point of contact is Captain S. D. MMSR-4, (703) 784-9308/09.


Head, Separation and
Retirement Branch
By direction of the Commandant
of the Marine Corps

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