DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 12362-09
22 February 2010
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 4 February 2010. 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.
On 23 October 1997, the Physical Evaluation Board (PEB) made
preliminary findings that you were unfit for duty by reason of
physical disability due to mild partial posterior cord right
brachial plexus compression, which was secondary to a “ruck sack -
injury”. The PEB rated that condition at 40%. You accepted the’
findings of the PEB on 29 October 1997. The findings were
approved on 4 November 1997, and you were released from active
duty and transferred to the Temporary Disability Retired List. A
report of physical examination dated 24 April 2001 indicates
that your condition had improved significantly, although you
still had some intermittent neck pain, which you attributed to
the injury. You told the physician who performed the examination
that you wanted to return to active duty, but he felt that it
was doubtful that you would be found qualified for further
service in the Marine Corps. In his opinion, you could suffer a
vecurrence of the injury if you resumed Military training,
especially when carrying a heavy pack. On 5 February 2002, the
PEB made preliminary findings that you remained unfit for duty,
and that your disability had improved and was ratabile at 20%.
As you did not respond to the notification of those findings in
a timely manner, your acceptance of the findings was presumed
and your case was finalized. You were discharged with
entitlement to disability severance pay upon the approval of the
findings of the PEB,
The Board did not accept your unsubstantiated contention to the
effect that you were misadvised by your PEB liaison officer. In
the absence of evidence which demonstrates that your condition
was ratable at or above 30% disabling at the time of your
discharge, the Board was unable to recommend any corrective
action in your case. 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,
\aQua$
W. DEAN PFE
Executive Dixdckor
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