Docket No. 2488-20
Ref: Signature Date


  
Dear  ,  
 
This letter is in reference to your reconsideration request.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been denied.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.      
 
A three-member panel of the Board, sitting in executive session, considered your application on 17 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.  Additionally, the Board considered the advisory opinions contained in Senior Medical Advisor CORB letter 1910 CORB: 002 of 16 June 2020 and Director CORB letter 1910 CORB: 001 of 6 July 2020; copies of which were previously provided to you for comment. 
 
The Board carefully considered your arguments that you were unfit for continued naval service at the time of your discharge from the Navy due to Traumatic Brain Injury (TBI) and Dysthymic Disorder.  You assert that you should have been placed on the disability retirement list and point out that you underwent brain surgery seven years post-discharge.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinions in your case.  Specifically, the Board concurred with the opinion that there is insufficient evidence of unfitness at the time of your discharge to merit your placement on the disability retirement list.   
 
In order for a service member to be placed on the disability retirement list, there must be evidence that the member is unable to perform the duties of their office, grade, rank or rating due to a qualifying disability condition.  In your case, the Board found no evidence you were unable to perform your duties due to TBI or Dysthymic Disorder leading up to your discharge.  While the evidence supports a finding that your back condition was occupationally impairing, there was not similar evidence to support such a finding for TBI or Dysthymic Disorder.  The Board noted you were not referred for either condition by a medical board and that your performance evaluations leading up to your discharge show no drop off in performance that would be expected with an individual with either condition.  As such, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 
 
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,