DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 08319-10
3 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. In
this regard, the Board found that you were voluntarily separated from
the Marine Corps on 22 August 1967 without entitlement to disability
separation or retirement because you had recovered from the wounds
you had sustained on 12 August 1966 and were considered fit for duty
and separation at that time.
The Department of Veterans Affairs (VA) must assign a disability
rating to any condition incurred in or aggravated by a period of
military service, without regard to the issue of the veteran’s
fitness for military duty; consequently, the VA was required to rate
the loss of your spleen and a kidney even though neither condition
was more than minimally symptomatic. In addition, the VA is permitted
to add disability ratings at any time, as it did in your case in 2004,
2007 and 2009, when it added ratings for posttraumatic stress
disorder, coronary artery disease, tinnitus, hearing loss, scars,
and compensatory hypertrophy of your remaining kidney. Unlike the
VA, the military departments are permitted to assign disability
ratings only in those cases where the service member has been found
unfit to reasonably perform the duties of his office, grade, rank
or rating at the time of separation or retirement. Once assigned,
ratings cannot be raised or lowered, and ratings for new or related
conditions cannot be assigned. As you performed your duties ina
-highly creditable manner until you were discharged from the Marine
Corps, there was no basis for referring you for disability evaluation
or finding you unfit 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 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,
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