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NAVY | BCNR | CY2007 | 07442-07
Original file (07442-07.pdf) Auto-classification: Denied
DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

JRE
Docket No. 07442-07
27 October 2008

 

Dear Mr. in

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 of 9 October 2008. The Board concluded that so much
of your application as pertains to the expunction of records of
nonjudicial punishment and counseling entries was not timely
‘filed, and that it would not be in the interest of justice to
excuse your failure to submit those requests in a timely manner.
In this connection, the Board substantially concurred with the
comments contained in the enclosed advisory opinion from the
Judge Advocate Division, Headquarters Marine Corps, dated 12
March 2008.

After careful and conscientious consideration of your remaining
requests for correction of your record, the Board found that the
evidence submitted was insufficient to demonstrate the existence
of probable material error or injustice.

The Board was not persuaded that there is material error or
injustice in connection with your discharge by reason of
misconduct/minor disciplinary infractions, which was executed
pursuant to the approved findings and recommendation of an

administrative discharge board.
As you were pending separation by reason of misconduct, you were
not entitled to have the Physical Evaluation Board (PEB)
consider your medical board diagnoses of adjustment disorder and
chronic leg pain and evaluate your fitness for further service.
The Board concluded that it is unlikely you would have been
separated or retired by reason of physical disability even if
your case had been considered by the PEB, as it noted that an
adjustment disorder is not a disability under the laws
administered by the Department of the Navy. In addition, the
Board did not believe that your chronic leg pain, which was
largely subjective in nature, rendered you unfit to reasonably

perform the duties of your office, grade, rank or rating when
discharged by reason of misconduct /minor disciplinary

infractions on 26 May 1999.

In view of the foregoing, your application has been denied.

The Board did not consider recharacterizing your service as
honorable or under honorable conditions, as you did not exhaust
an available administrative remedy by applying to the Naval
Discharge Review Board for upgrade of your discharge.

You may request reconsideration of the Board’s decision.

Your request must include newly discovered relevant evidence
which was not reasonably available to you when you submitted
your application. The evidence may pertain to the timeliness of
your application or to its merits. Absent such additional

evidence, further review of your application is not possible.

It is regretted that a more favorable reply cannot be made.

Sincerely,

W. DEAN PPEIFRE
t

Executive Dir

Enclosure

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