Docket No. 1996-20 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 3 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. In addition, the Board considered the advisory opinions contained in Psychiatric Advisor CORB letter 1910 CORB: 002 of 29 June 2020 and Director CORB letter 1910 CORB: 001 of 14 July 2020; copies of which were previously provided to you for comment. A review of your record shows that you entered active duty with the Navy in November 2009. After you were dropped from BUD/S training, you were treated for chronic mental health, knee, and back conditions leading up to your discharge in April 2012. Medical records show that you were originally seen for mental health therapy in October 2011 that lasted through January 2012. In April 2012, you were deemed not suitable for sea duty but otherwise determined to be psychologically fit for duty. Your last mental health evaluation on 30 April 2012, diagnosed you with an adjustment disorder but concluded you were fit for duty. You were discharged the same day for condition not a disability. In addition to your mental health condition, you were also treated for knee and back conditions during this time. You were placed on limited duty in January 2012 for both conditions. However, after an examination, your knee condition was determined not to merit limited duty in February 2012. Additionally, in March 2012, you were removed from limited duty entirely after a medical examination concluded you were fit for full duty without restrictions. Later examinations of your back noted you continued to suffer pain under certain conditions but were still able to perform strenuous physical activities such biking or sprinting. Post-discharge, the Department of Veterans Affairs (VA) rated you for a number of disability conditions including Adjustment Disorder, Spondylolisthesis of lumbar spine, and Right knee Chondromalacia Patella. A 2019 letter from your medical provider documents that you attended therapy sessions for Post-Traumatic Stress Disorder (PTSD) from October 2018 through May 2019 and prescribed medication. The Board carefully considered your arguments that you deserve to be placed on the disability retirement list. You assert that you were separated while on limited duty and still under medical care. You also point out that the VA rated you at a combined 80% upon your discharge and you are unable to collect full GI Bill benefits. Unfortunately, the Board disagreed with your rationale for relief. In making their findings, the Board substantially concurred with the advisory opinions in your case. First, the Board concluded that the evidence does not support a finding that you were unfit for continued naval service at the time of your discharge. In order to qualify for placement on the disability retirement list, a service member must be unable to perform the duties of their office, grade, rank or rating as a result of a qualifying disability condition. In your case, you were cleared for full duty status as of the day of your discharge from the Navy. So despite the fact you were unable to be assigned to sea duty, the Board concluded you qualified for assignment to other duties within the Navy. Additionally, the Board noted you were not on limited duty at the time of your discharge since you were removed on 19 March 2012. At that time, you were described as a very healthy and fit service member who was fit for full duty. Based on these medical findings of fitness in the months leading up to your discharge, the Board determined the preponderance of the evidence does not support a finding of unfitness or placement on the disability retirement list. The Board also considered your post-discharge VA ratings but did not find them persuasive on the issue of unfitness since eligibility for compensation and pension disability ratings by the VA is tied to the establishment of service connection and is manifestation-based without a requirement that unfitness for military duty be demonstrated. As explained earlier, the Board found significant evidence that you were medically determined to be fit. Further, the fact you were treated for PTSD approximately six years after your discharge did not convince the Board you were unfit for the condition. The significant length of time between your discharge and your treatment significantly lessened the probative value of your treatment in determining whether you were unfit at the time of your discharge. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record. 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, 9/8/2020 Executive Director