Docket No: 10353-18 
Ref: Signature Date 


This letter is in reference to your reconsideration request dated 23 October 2018.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  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.  Consequently, your application has been denied. 

Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 3 February 2020.  The names and votes of the members of the panel will be furnished upon request.  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, relevant portions of your naval record, and applicable statutes, regulations and policies.  The Board also considered the relevant Advisory Opinion (AO), and your response to the AO. 

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 

You enlisted in the Navy and served honorably on active duty until your discharge on 20 September 2013, on the basis of weight control failure.  From 2000 to 2003, you were stationed in and were dating a fellow Sailor who was abusive.  From 2003 to 2006, your duties included responsibility for photographing autopsies from war casualties, aircraft mishaps, homicides, suicides, and terrorist events.  During this period, you also suffered the loss of your difficulties.  Affairs Specialist.  While you were stationed at  committed suicide.  You were referred to a Physical Evaluation Board (PEB) for left lateral epicondylitis, asthma, and migraine headaches.  In October 2011, while awaiting the PEB, you failed your first body composition analysis (BCA).  In December 2011, the PEB found you fit for continued active duty.  On 16 October 2012, you failed a second BCA.  In May 2013, you failed a third BCA, triggering administrative separation processing.  On 22 August 2013, you appeared before an administrative separation board which recommended by unanimous vote that you be administratively separated with an honorable characterization of service.  Following your discharge, you received a combined disability rating of 70% with 50% rating for Post-Traumatic Stress Disorder (PTSD) with Major Depressive Disorder. 

In your petition for reconsideration, you ask for a return to active duty or medical retirement with a change to narrative reason for separation to Secretarial Authority, and a change from a reentry code of RE-3F to RE-1.  You ask for that the Board consider that you struggled with PTSD and/or Persistent Depressive Disorder (PDD) during your military service, and that these conditions likely contributed to your discharge.  You also ask that the change in policy since your discharge be taken into consideration. 

As part of the review process, the CORB considered your request, and issued an AO dated 19 November 2019.  The AO accounted for the information in your active service mental health history and determined that the evidence does not support your petition.  The AO noted that after you were found fit for duty by the PEB for several non-mental health conditions, you reenlisted and earned a laudatory assessment of your duty performance, suggesting overall fitness for duty.  The AO concluded that there was insufficient evidence to support a finding of unfitness or disability.  The AO was provided to you, and you submitted a response.  Your response contended in part that the AO was in error in that it did not provide for liberal consideration as directed in the Kurta memo, and the AO does not reference or acknowledge the  University Report of Cognitive & Psychosocial Assessment. 

Your request was fully and carefully considered by the Board in light of the Secretary of Defense’s Memorandum, “Supplemental Guidance to MilitaryBoards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of  3 September 2014, and the “Clarifying Guidance to Military Discharge Review Board and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment” memorandum of 25 August 2017.  The Board considered that you assert that your mental health conditions contributed to your discharge but noted that the aforementioned policy guidance pertains to discharges involving misconduct and requests for an upgrade to characterization of service. The Board found that since you received an honorable characterization of service, and were discharged on the basis of weight control failure, the policies do not specifically apply to your situation.  Nonetheless, the Board noted your argument The Board, in its review of your entire application, carefully weighed all potentially mitigating factors, including your detailed statement about your military service, the stressors you endured during active duty and your contention of functional impact of mental health conditions on your fitness for duty and ability to meet physical fitness standards.  Additionally, the Board carefully considered the information you provided to support your request, to include the Report of Cognitive & Psychosocial Assessment, the applicable guidance, your contention that the Kurta memorandum is specifically applicable to your situation, the AO, your response to the AO, and the information reflected in your service record.  The Board also considered your “new and material evidence thru submission of legal precedent not reviewed previously” by the Board, to include both case law and prior Board decisions. 

The Board noted that your application relies in part on 32 C.F.R. §70.9, “Discharge review standards,” which applies to the Naval Discharge Review Board (NDRB), rather than the Board.  The standard of review for the Board is outlined under SECNAVINST 5420.193, rather than 32 C.F.R. § 70.9. Nonetheless, you state that your discharge is inequitable under 32 C.F.R. §70.9(c)(1) because the policies and procedures under which you were discharged in 2013, differ in material respects from policies and procedures currently applicable.  You contend that you would not be discharged for BCA failure under current Navy policies.  The Board took your assertions of injustice under consideration but noted that even assuming that 32 C.F.R. § 70.9 applied to the Board’s review, 32 C.F.R. 70.9(b)(1)(ii) states that “(a) change in policy . . .  made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.” (emphasis added).  The change in policy for discharges due to weight control failure was not made expressly retroactive.  Therefore, even in consideration of your assertion, the Board found that your discharge as issued in 2013 was without error or injustice under SECNAVINST 5420.193. 

The Board determined that although the policy regarding administrative separation procedures for weight control failure have changed since the time of your discharge, that you were properly processed for administrative separation based on enforceable and applicable policies at the time.  The Board noted that you appeared before an administrative separation board, which unanimously voted to recommend separation.  The Board also noted that pursuant to SECNAVINST 1850.4 series, a disability separation or a medical retirement is appropriate when a service member is unfit for continued duty.  The Board concurred with the AO and concluded that your record indicates that you were performing your duties satisfactorily. Even in consideration of your health issues, to include mental health issues which may have impacted your performance while serving in the Navy, the Board found that your administrative separation was neither erroneous nor unjust, and that a change to your record is not warranted.  The Board found that since you were properly discharged following an administrative separation board on the basis of policies in place in 2013, you should not be returned to active duty, nor should you receive a disability separation or medical retirement.  Furthermore, your narrative reason for separation and current RE code are supported by the nature of your administrative separation to With regard to your argument that legal precedent dictates a change in your record, the Board found that the case law and previous Board decisions are distinguishable from your situation.  With respect to the case law you reference, the Board noted that unlike your situation, the discharges involved are factually distinguishable in that they were not based on weight control failures, and involved adverse discharge characterizations.  The Board reviewed the administrative decisions reflected in your record, and found that you were afforded the opportunity to access the administrative separation process before an administrative separation board.  The Board also found that you were not entitled to a disability discharge (either disability retirement or severance pay) because you were serving satisfactorily in the performance of your duties.  The Board concluded that your discharge was not arbitrary or capricious, and did not reflect an error or injustice.  

Regarding Court findings pertaining to Board action, the current members reviewed your case under the guidance of SECNAVINST 5420.193.  With respect to the past Board decisions you reference, the Board again found that your case is factually distinguishable. Specifically, the Board noted that with regard to the past Board decisions cited, the Board found that the repeal of “Don’t Ask, Don’t Tell” (DADT) did represent a shift in policy regarding discharge practices. However, unlike the subsequent guidance regarding retroactive upgrades for individuals discharged under DADT policies, neither the Department of Defense nor Department of the Navy have issued similar directives regarding past discharges for weight control failure. 

It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction.