DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX JRE
WASHINGTON DC 20370-5100 Docket No. 01068-10
31 January 2011
GRRE tii
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 21
January 2011. 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.
You enlisted in the Marine Corps on 6 October 1999. On 30 September
2004, while on terminal leave, you were severely injured in a motor
vehicle accident. Available records indicate that the high rate of
speed at which you were driving the vehicle and consumption of alcohol
were contributing factors to the accident. There is no indication
that a line of duty investigation into the circumstances of the
accident and injuries was conducted. You were retained on active duty
for almost one year beyond your expiration of active obligated
service in order to receive medical treatment and rehabilitative
services, and to complete periods of convalescence. You were
carefully evaluated on 20 September 2005 and considered qualified
for separation. You completed a Report of Medical History on that
date in which denied having a history of psychiatric complaints, to
include anxiety or depression. You were released from active duty
on 29 September 2005 by reason of completion of required active
service, and assigned a reentry code of RE-1A to indicate that you
were qualified and recommended for further service.
On 3 May 2006, the Department of Veterans Affairs (VA) awarded you
disability ratings of 30% for depression, separate 10% ratings for
six conditions, and separate 0% ratings for five conditions. VA
tating officials determined that although the mental disorder was
“not shown in service”, there was a relationship between that
‘disorder and your in-service injuries. The rating for the mental
disorder was increased to 100% effective 29 July 2009.
The Board concluded that your receipt of disability ratings from the
VA is not probative of the existence of error or injustice in your
case, because the VA assigned those ratings without regard to the
issue of your fitness to reasonably perform military duty at the time
of your discharge. In addition, the Board noted that although the
VA may increase a veteran's disability ratings at any time to reflect
changes in the degree of severity of rated conditions, disability
determinations made by the military departments are fixed as of the
date of the service member’s release from active duty or discharge.
As you have not demonstrated that you were unfit for duty by reason
of physical disability on 28 September 2005, 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 oz injustice.
Sincerely,
W. DI!
Executive Director
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