Docket No: 2512-20  
Ref: Signature Date  
From:Chairman, Board for Correction of Naval Records  
To:  Secretary of the Navy  

Ref:  (a) 10 U.S.C. § 1552 
Encl: (1) DD Form 149 w/attachments 

1.  Pursuant to the provisions of the reference, Subject, hereinafter referred to as Petitioner, filed the enclosure with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected to reinstate him to the Temporary Disability Retirement List (TDRL) for the purpose of receiving a final periodic examination. Petitioner 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). 

2.  The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 16 April 2020 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 enclosure, relevant portions of Petitioner’s 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 regulation within the Department of the Navy. 

b.  Petitioner entered active-duty service in the Navy in July 1999 and served without incident until his referral to the Physical Evaluation Board (PEB) in 2014.  The PEB found him unfit for continued naval service for major depressive disorder on 13 November 2014 and assigned him a 50% disability rating.  Petitioner was subsequently placed on the TDRL in December 2014.  In 2018, Petitioner appeared to exercise due diligence to schedule and attend a final periodic examination.  However, Petitioner was eventually administratively removed from the TDRL for failing to attend a final periodic examination.  This Board denied his original application on 13 February 2020 due to lack of evidence that he exercised due diligence to attend his final periodic examination. 

CONCLUSION 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief.  Specifically, the Board determined that no error was committed by the PEB in administratively removing Petitioner from the TDRL, since it was his responsibility to ensure he attended his final periodic examination.  However, the Board also determined that an injustice exists in Petitioner’s record that should be addressed by reinstating him to the TDRL to allow him another opportunity to attend a final periodic examination so the PEB may issue a final adjudication in his case.  The Board determined that denying Petitioner the potential for retirement benefits due to an apparent miscommunication would perpetuate an injustice, since he submitted his request to be reinstated to the TDRL in a reasonable time.  In making its findings, the Board also considered Petitioner’s disability condition and how it mayhave impacted his ability to attend his final periodic examination.  

RECOMMENDATION 

In view of the above, the Board directs the following corrective action. 

Petitioner was reinstated to the Temporary Disability Retirement List effective the date of this letter.  The sole purpose of his reinstatement is 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.  All due process rights associated with the Disability Evaluation System will be afforded to the Petitioner as part of the Physical Evaluation Board review. 

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 Regulations, 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 the reference, has been approved by the Board on behalf of the Secretary of the Navy.