DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2314-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 (2) HQMC ltr 1070 JAM2 of 6 Dec 2011 (3) Director CORB ltr 1910 CORB: 002 of 23 Apr 2012 (4) Senior Medical Advisor CORB ltr 1910 CORB: 002 of 25 Mar 2019 (5) Director CORB ltr 1910 CORB: 001 of 9 Apr 2019 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 her on the disability retirement list with a determination that her unfitting disability conditions are combat-related or, in the alternative, convene a Physical Evaluation Board (PEB) to consider her case, and removal of the non-judicial punishment from her record. Petitioner’s case was reconsidered in accordance with procedures that conform to Lipsman v. Secretary of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). She was previously denied relief by the Board on 20 September 2012. 2. The Board, consisting of , , and reviewed Petitioner's allegations of error and injustice on 20 June 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 the naval records, and applicable statutes, regulations, and policies. 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 active duty with the Marine Corps on 26 August 2002. On 25 September 2002, she suffered a head injury on the obstacle course while in basic training. She received treatment for post-concussive syndrome, fainting, and migraine headaches through her training pipeline. Petitioner was eventually referred to Neurology due to continued symptoms related to her injury and placed on limited duty on 2 July 2003. c. On 2 February 2004, a military police investigation commenced after a Marine overdosed on a controlled substance. Another Marine initially admitted to larceny of Petitioner’s prescription medication, but later recants his confession and states Petitioner was complicit in providing him with her medication. Based on this change in events, non-judicial punishment was imposed on Petitioner on 2 April 2004 for wrongful distribution of Percocet and an orders violation for distribution. She was reduced in paygrade to E-2, and issued forfeitures of $1,336.00 as punishment for her misconduct. Petitioner was subsequently notified of administrative separation processing for wrongful use of a controlled substance and her disability case was cancelled due to her pending administrative separation for misconduct. Eventually, Petitioner was discharged for misconduct with an Other than Honorable characterization of service. d. On 4 May 2006, the Naval Discharge Review Board (NDRB) denied Petitioner’s request for relief. The NDRB determined Petitioner was improperly notified of administrative separation processing for wrong use vice distribution of a controlled substance but concluded she was placed on notice despite the erroneous notification. The NDRB also determined the fact Petitioner was improperly charged with an Article 92 orders violation did not invalidate her administrative separation since she was also properly charged under Article 112a for distribution. In their opinion, the result of her administrative separation processing would not have changed had her Article 92 charge not existed. The NDRB also addressed issues regarding the Staff Judge Advocate recommendation, allegations of uncorroborated evidence used against Petitioner, and good conduct evidence including post-discharge evidence in determining no relief was warranted. e. On 24 March 2010, the NDRB granted relief to Petitioner by upgrading her characterization of service to Honorable and changing her narrative reason for separation to Secretarial Authority. Based on a review of the evidence, the NDRB reached a different conclusion on Petitioner’s allegations of error after a personal appearance hearing. f. Petitioner subsequently filed an application with this Board requesting her relief in the form of military disability benefits due to errors with the non-judicial punishment proceedings and her administrative separation processing. Enclosures (2) and (3) were obtained to advise the Board on Petitioner’s requests and she responded with comments that were considered by the Board. The Board applied the statute of limitations when considering Petitioner case but also concluded she provided insufficient evidence to support a finding that an error or injustice existed with regard to her administrative separation. The Board made the determination based the circumstances surrounding Petitioner’s non-judicial punishment when considered in conjunction with her admission of illegal drug use on her 24 March 2004 Report of Medical History. The Board also adopted the findings and conclusions of the 2006 NDRB in reaching their decision. g. Petitioner raises many of the same arguments in her new application to this Board but requests reconsideration based on the recent policy changes involving liberal consideration of cases involving mental health diagnoses. She argues that she was unfit for continued naval service due to Traumatic Brain Injury (TBI), Migraine Headaches, Epilepsy, Cognitive Disorder, and Post-Traumatic Stress Disorder (PTSD); all incurred as result of simulated combat. She also argues for removal of her non-judicial punishment due to lack of evidence that she committed the misconduct. h. In correspondence attached at enclosures (4) and (5), the office having cognizance over Petitioner’s request to be placed on the disability retirement list determined that insufficient evidence exits to support relief. The Advisory Opinion does not dispute the diagnoses of migraine headaches, cognitive disorder, or TBI but concludes that there is insufficient evidence to show any of those conditions prevented Petitioner from performing her military duties. The opinion goes on to state it was her post-traumatic syncope condition that prevented her from performing her duties as a Motor Transport Operator and while this condition originated from her TBI, her TBI condition did not prevent her performance of duties. Finally, the opinion states the evidence “strongly suggests neither epilepsy nor PTSD were manifest at the time she was separated from service.” Based on these findings, the opinion goes on to conclude Petitioner would have been found unfit only for Post-Traumatic Syncope consistent the opinion contained in enclosure (3). Petitioner provided comments to enclosures (4) and (5) arguing that evidence supports a finding that Petitioner was unfit due to all her claimed disability conditions. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial relief. In making this determination, the Board substantially concurred with the Advisory Opinions contained in enclosures (4) and (5). First, the Board concluded insufficient evidence exists to support a finding that Petitioner was improperly found guilty at non-judicial punishment. Similar to the previous Board’s difficulty that led to their application of the statute of limitations due to the lack of evidence regarding the non-judicial punishment, the Board also concluded insufficient evidence exists to overturn the decision to impose non-judicial punishment. While the Board took into consideration the 2010 NRDB rationale, the Board noted the NDRB previously reached a different conclusion based on the evidence. Ultimately, the Board felt Petitioner’s assertions that she did not commit the offense were inadequate to overturn a decision that was made contemporaneous to when evidence, and presumably witnesses, regarding the alleged misconduct were available. Therefore, the Board concluded Petitioner’s non-judicial punishment should not be set aside nor her paygrade or forfeitures reinstated. Second, the Board determined that Petitioner was properly administratively separated due to her misconduct. In making this finding, the Board adopted the rationale utilized by the 2006 NDRB and this Board’s 2012 decision. Based on this finding, the Board concluded Petitioner was not eligible for disability processing due to her administrative separation for misconduct. Third, despite the Board’s finding that Petitioner was properly discharged for misconduct in 2004, the Board concluded that an injustice exists in her record that warrants a change to her record. The Board concluded that Petitioner’s narrative reason for separation should be changed to reflect she was discharged for a disability condition. Specifically, the Board concluded her record should reflect that she was found unfit for continued naval service by the PEB due to Post-Traumatic Syncope/Seizures with a 20% rating. The Board substantially concurred with enclosures (4) and (5) that Petitioner’s syncope condition would have been the only condition that created a substantial enough occupational impairment to warrant a finding of unfitness and adopted the rationale expressed in the opinions on why the other claimed disability conditions would not have been unfitting. The Board also concluded that Petitioner’s syncope condition was combat-related based on simulated combat. This finding was derived from enclosure (4) which opined that her syncope condition was the result of her TBI that occurred during an obstacle course injury that was incurred in simulated combat training. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by changing the narrative reason for separation on her DD Form 214 to reflect Petitioner was discharged due to disability, combat related, along with assignment of an appropriate separation code. A copy of this decision letter, along with enclosures (3), (4), and (5) shall be placed in Petitioner’s record to document the basis for this change and memorialize the 20% rating for her unfitting syncope condition. 4. 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. 5. 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 Regulation, Section 723.6(e)) and having assured compliance with its provisions, 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. 6/24/2019 Executive Director