DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 ,
JRE
Docket No. 02149-08
24 October 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 23 October 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.
The Board found that you served on active duty in the Marine
Corps from 19 May 1997 to 18 May 2001, when you were released
from active duty and transferred to the Marine Corps Reserve
(USMCR). You were discharged from the USMCR on 5 May 2005 at
the expiration of your statutory service obligation. You
reenlisted in the USMCR on 7 December 2006 for a term of one
year. It appears that your enlistment was fraudulent, in that
you failed to disclose your history of a herniated nucleus
pulposus, chronic back pain and a Department of Veterans Affairs
(VA) disability rating of 40% when you completed a Report of
Medical History in conjunction with your pre-enlistment physical
examination, which was conducted by a civilian contract
physician on 21 November 2005. You were mobilized for service
in Operation Enduring Freedom for the period 9 January-30
November 2006 by orders dated 12 January 2006. The orders
directed that you report any condition that would prohibit,
hamper or preclude the execution of the orders so that the
medical department representative could determine your
qualification for service. You were advised further that if you
did not meet Marine Corps standards, you were to return the
orders to your parent command without executing them. On 4
February 2006, you sought medical care for low back pain and
“slipped discs”. You reported that earlier that day, you had
sneezed and your back “slipped out”. You also reported your
history of a herniated nucleus pulposus, L-5-S-1, and former
entitlement to a VA disability rating of 40%. You were given
diagnoses of chronic lumbago and history of herniated nucleus
pulposus, and recommended for demobilization without referral to
a medical board. You were released from active duty on 17 March
2006, and discharged from the USMCR on 6 December 2006 at the
expiration of your enlistment.
The Board was not persuaded that you were unfit for duty by
reason of a physical disability that was incurred or aggravated
by your service in the USMCR, and therefore entitled to
Gisability separation or retirement. As noted above, your lower
back conditions existed prior to your enlistment in the USMCR,
which you procured through fraud. It is unlikely that you would
have been entitled to disability separation or retirement even
if there had been no fraud, as there is no credible evidence
that your condition increased in severity beyond normal
progression during your brief period of active service in 2006.
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,
lua dQ
W. DEAN PFEIURE
Executive Dikéctar
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