From:   Chairman, Board for Correction of Naval Records 
To:       Secretary of the Navy 
 
Subj:    REVIEW OF NAVAL RECORD ICO     
  
Ref:     (a) Title 10 U.S.C. 1552 
 
Encl:   (1) DD Form 149 
        (2) Director CORB ltr 1910 CORB: 002 of 7 Oct 19 
 
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 add Traumatic Brain Injury (TBI) as an unfitting condition with a combat determination. 
                                              
2.  The Board, consisting of  reviewed Petitioner's allegations of error and injustice on 21 November 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 service with the Marine Corps in June 2008.  He was assigned to multiple duty stations during which he experienced traumatic events leading to a Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder diagnoses.  On 12 April 2016, a medical board referred Petitioner to the Physical Evaluation Board (PEB) for PTSD and Major Depressive Disorder, Single Episode.  A 27 July 2016 medical board addendum added post-traumatic headaches with migraine features as an additional diagnosis.  On 7 December 2016, the PEB found Petitioner unfit for continued naval service due to PTSD and Major Depressive Disorder as a related diagnosis.  Based on a Department of Veterans Affairs proposed rating, the PEB assigned Petitioner a 70% rating for his PTSD and placed him on the Temporary Disability Retirement List (TDRL).  Petitioner was subsequent transferred to the Permanent Disability Retirement List (PDRL) on 29 July 2019. 
 
     c.  In correspondence attached at enclosure (2), the office having cognizance over Petitioner’s request to change his PEB record determined that sufficient evidence exists to merit a change. The Advisory Opinion opined that the evidence shows Petitioner was likely unfit for continued naval service due to his medical board referred headaches.  Based on the VA issued 50% rating for his headache condition, the opinion recommends returning Petitioner to the TDRL, adding the headache disability as an unfitting condition, and allow him to be examined for a final PEB adjudication.   
                                
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting relief.  In this regard, the Board concurred with the Advisory Opinion at enclosure (2).  Specifically, the Board determined that preponderance of the evidence supports a finding that Petitioner was likely unfit for continued naval service as a result of his headache condition.  The Board relied on the 27 July 2016 medical board addendum that determined he was unfit for duty as a result of his headache symptoms.  The Board concluded it lacked medical evidence to determine whether Petitioner’s headache condition remained unchanged from 2017 and agreed that returning Petitioner to the TDRL so a periodic physical examination could be conducted is appropriate to allow the PEB to issue a final adjudication in Petitioner’s case.   
 
Additionally, the Board found insufficient evidence that Petitioner was unfit for continued naval service due to TBI.  Unlike his headache condition, the Board found no evidence in the medical board report that documented a TBI condition prevented him from performing the duties of his office, grade, rank or rating.   
 
Finally, the Board concluded Petitioner’s request for a combat related determination for his disability conditions was not yet ripe for Board consideration since his case is being referred back to the PEB for a final adjudication and Petitioner has the opportunity to exercise due process rights to contest his PEB findings, including a combat-related determination.  Should he be denied his requested combat-related determination by the PEB, Petitioner also has the right to appeal that decision to the Office of the Judge Advocate General, Administrative Law Division before requesting relief to this Board.   
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by adding Headaches, Post-Traumatic, VASRD 8100, 50%, to Petitioner’s PEB record as an additional and separately unfitting condition effective the day of his placement on the TDRL.  Petitioner’s transfer to the PDRL is voided, returning him to the TDRL, so he may undergo a physical examination and have the Physical Evaluation Board make a final determination of his disability status in accordance with Title 10, U.S. Code, Section 1210.    
                                                
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.