DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 07459-10
4 March 2011
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 3 March
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 were found fit for duty by the Physical Evaluation Board on 29
June and 26 July 2006 notwithstanding your long history of lower back
pain. You were honorably discharged on 31 December 2006 by reason
of completion of required active service. Following your discharge,
the Department of Veterans Affairs (VA) awarded you disability
ratings of 50% for sleep apnea, 20% for a condition of your left
shoulder; 10% for seven conditions; and 0% for five conditions. In
addition, the VA denied your request for service connection for five
conditions.
Your receipt of disability ratings from the VA is not probative of
the existence of error or injustice in your naval record, because
those ratings were assigned without regard to the issue of your
fitness for military duty on the date of your voluntary discharge
from the Marine Corps. Although you received disability ratings
from the VA for multiple conditions, you have not demonstrated that
any of them rendered your unfit for duty. The Board noted that sleep
apnea is not unfitting per se, and the available records do not
establish that it caused excessive daytime somnolence or other
possibly unfitting symptoms.
In the absence of evidence which demonstrates that you were unfit
to reasonably perform the duties of your office, grade, rank or rating
by reason of physical disability on 31 December 2006, the Board was
unable to recommend favorable action on your request. 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,
\Wuat
W. DEAN PF
Executive Ditettor
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