DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1485-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 w/attachments (2) Subject’s naval record 1. Pursuant to the provisions of reference (a) Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to place him on the disability retirement list. 2. The Board, consisting of reviewed Petitioner’s allegations of error and injustice on 28 March 2019 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval records, and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinion contained in Director CORB letter 1910 CORB: 002 of 13 February 2019; a copy of which was previously provided to Petitioner for comment. 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Petitioner entered the Marine Corps in May 1984. On 1 May 1996, a medical board referred Petitioner to the Physical Evaluation Board (PEB) for asthma and labile hypertension. He was found unfit for continued naval service by the PEB on 3 July 1996 and his asthma condition rated at 10%. Petitioner was discharged on 30 September 1996 pursuant to the PEB findings. c. On 29 April 1988, the Department of Veterans Affairs issued a new disability rating for Petitioner’s asthma condition. Based on a revision to the Pulmonary VASRD diagnostic codes, Petitioner’s asthma rating was increased from 30% to 100% effective 7, October 1996: seven days after his discharge from the Marine Corps. d. Director CORB provided an advisory opinion stating that the PEB accurately rated Petitioner’s condition at the time of his discharge. However, based on the 1996 change in the pulmonary VASRD code, he opined that Petitioner would have received a 100% rating had the change occurred seven days prior. Based on this fact, he recommended the Board consider granting relief as a matter of equity. e. The Board concurred with the advisory opinion that the PEB did not commit an error in the case. However, in order to correct an injustice, the Board determined Petitioner’s disability rating should be retroactively changed to 100% vice 10% based on the 1996 change to the pulmonary VASRD code and he should be placed on the Permanent Disability Retirement List effective the date he was originally discharged. In their opinion, to deny Petitioner the benefit of the change that occurred only seven days after his discharge would continue an injustice that has existed since 7 October 1996. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting the following corrective action. RECOMMENDATION That Petitioner’s naval record be corrected, where appropriate, to show that: Petitioner was placed on the Permanent Disability Retirement list for Asthma, VASRD Code 6602, with a disability rating of 100%, effective 1 October 1996 vice discharged. A copy of this Report of Proceedings will be filed in Petitioner’s naval record. 4. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)) and having assured compliance with its provisions, it is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter. It is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy. 4/1/2019 X Executive Director Signed by: