Docket No. 1735-20
Ref: Signature Date


Dear  
 
This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found 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 case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 10 September 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.   
 
A review of your record shows that you entered active duty with the Navy in August 1990.  The Physical Evaluation Board (PEB) found you unfit for continued naval service in September 1995 for Recurrent Subluxations and dislocations of right patella, Chronic instability of right ankle, Complex migraine headaches, and Gastroesophageal reflux disease.  As a result, you were transferred to the Temporary Disability Retirement List (TDRL) on 15 January 1996.  You were ordered to attend a periodic TDRL physical examination on 11 September 1997 with no evidence you attended.   As a result, you were eventually removed from the TDRL and discharged from the Navy in 2005.  You provided evidence that you suffered a stroke in 2014 and utilized TRICARE benefits until 2019 when you were informed that you were no longer eligible for coverage. 
 
The Board carefully considered your arguments that you should be reinstated to the disability retirement list.  You assert that you updated your DEERS record and paid TRICARE premiums for years after your discharge from the Navy.  Unfortunately, the Board disagreed with your rationale for relief.  Specifically, the Board found no error or injustice with the Navy’s decision to remove you from the TDRL and discharge you for failing to attend your periodic physical examination.  Based on your PEB record, you failed to attend your periodic TDRL physical examination resulted in your administrative removal from the TDRL.  This in turn resulted in the stoppage of disability retirement pay that should have informed you in 2005 that you were no longer on the TDRL or eligible for TRICARE benefits.  The Board concluded the evidence that that you failed to attend your periodic examination along with your failure to act in a timely manner to address any allege errors by the PEB and/or Navy greatly diminish your assertion of error or injustice in your case.  Additionally, the Board noted it would be extremely difficult for the PEB to accurately assess your disability conditions as of 2005, approximately 15 years ago.   So if they had concluded an error existed in your record, they likely would have applied the statute of limitations to your case.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
Regarding your arguments of wrongful TRICARE payment collections, the Board concluded TRICARE payment disputes fall outside the Board jurisdictional authority.  However, based on your removal from the TDRL in 2005, you would not have been eligible for TRICARE coverage from that date.   
 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their 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. 
 
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 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 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, 

9/15/2020

Deputy Director