DEPARTMENT OF THE NAVY
ROARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 JRE
Docket No. 03957-08
ll May 2009
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 30 April 2009. 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 enlisted in the Marine Corps on 24 July
2002. In 2006 you were diagnosed with cancer of the left
testicle with metastases to the liver and lungs. The testicle
was removed surgically, and you underwent chemotherapy, which
was apparently successful, as your health improved and there was
no recurrence of the cancer. You were released from active duty
on 5 June 2007 and transferred to the Marine Corps Reserve. On
10 December 2007, the Department of Veterans Affairs (VA)
granted you service connection and disability ratings of 0% for
testicle cancer, and metastatic liver and lung cancer.
In order to be separated or retired by reason of physical
disability, a service member must be unfit to reasonably perform
the duties of his office, grade, rank or rating by reason of
disability. Although you suffered from cancer during your
period of active duty service, it was apparently in remission at
when you were released from active duty, and there is no
indication in the available records that you were unfit for duty
at that time. The fact that the VA awarded you service
connection and non-compensable disability ratings for several
conditions is not probative of the existence or error or
injustice in your naval record because the VA took those actions
without regard to the issue of your fitness for military duty as
of 5 June 2007.
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,
ek oo
ROBERT DAJZSALMAN
Acting Executive Director
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