DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2600-20 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. 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 April 2002. He suffered an assault in 2008 that eventually resulted in his referral to the Physical Evaluation Board (PEB) for moderate traumatic brain injury (TBI), migraine headaches, cervicalgia/cervical radiculopathy, visual field deficit, post-traumatic stress disorder (PTSD), and major depressive disorder. On 30 August 2012, the PEB found Petitioner unfit for major depressive disorder, migraine headaches, and cervicalgia with a combined 70% rating. As a result, Petitioner was transferred to the TDRL on 27 November 2012. c. Petitioner was scheduled for a final periodic examination in January 2018 but was unable to attend due to an inability to get on base with his vehicle. He failed to attend the follow-up appointment due to a migraine headache. As a result, the Navy Personnel Command requested Petitioner’s removal from the TDRL. The President, PEB, administratively removed Petitioner from the TDRL on 22 August 2018. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief. The Board determined that no error was committed by the PEB in administratively removing Petitioner from the TDRL, since it was his responsibility to attend his final periodic examination and he failed to do so. 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 his lack of diligence 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 conditions and how it may have 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.