DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 | JRE
Docket No. 06657-08
mo, 10 duly 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 11 June 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. In addition, the Board considered the
advisory opinion furnished by Commandant of the Marine Corps
dated 27 January 2009, a copy of which is attached.
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 opinion.
In addition, the Board concluded that you failed to demonstrate
that you were unfit for duty by reason of physical disability on
1 .March 2003, or that it would be in the interest of justice for
1h to excuse your failure to undergo a final periodic physical
examination.
Although you state you discovered the alleged error in your case
in 2007, the Board believes that you were aware of the
circumstances of your discharge much earlier. In this regard,
it noted that on 15 April 2003, you advised the Department of
Veterans Affairs (VA) of your marriage and the birth of a child,
and requested that you wife, child, and a stepchild. Presumably
you would have notified the Marine Corps of your newly acquired
dependents if you had believed that you were stiil in a member
of the Marine Corps so that they would be entitled to military
medical care and other benefits as dependents of a military
retiree. The Board also noted that on 17 June 2003 the VA was
notified that you had been discharged from the naval service
without entitlement to disability severance pay.
The Board did not accept your contention to the effect that your
record is erroneous or unjust because you notified unnamed
officials of Headquarters, Marine Corps of your change of
address. The Board concluded that the presence of your address
in documents the Department of Veterans Affairs (VA) provided to
the Marine Corps did not relieve you of the responsibility of
ensuring that appropriate Marine Corps officials were notified
of your correct address, and that you underwent a final periodic
physical examination.
Your contention to the effect that you were entitled to be
permanently retired in 1998, rather than transferred to the
Temporary Disability Retired List (TDRL) is clearly erroneous.
There are no provisions of law or regulation that require the
permanent retirement of a service member who has been assigned a
disability rating of 30% or higher. Given the paucity of
objective evidence of impairment associated with your condition,
it appears that you were found unfit for duty and transferred to
the TDRL as a precautionary measure because your condition had
the potential to become much more severe; however, there was
also the possibility that the condition would continue to
improve, as suggested by the return of normal strength in your
right arm which is noted in your medical board report, in which
case it is likely that. you would have been found fit for duty.
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 ail 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,
\DQoa’
W. DEAN PF F
Executive Dire r
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