From:  Chairman, Board for Correction of Naval Records 
To:    Secretary of the Navy 
 
Subj:   REVIEW OF NAVAL RECORD ICO FORMER MBR   
 
Ref: (a) Title 10 U.S.C. 1552 
 
Encl:   (1) DD Form 149 w/attachments 
        (2) Psychiatric Advisor CORB letter 1910 CORB: 002 of 24 July 2020 
        (3) Director CORB letter 1910 CORB: 001 of 12 August 2020 
 
1.  Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that Petitioner’s naval record be corrected to place him on the disability retirement list.   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 17 September 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 enclosures, relevant portions of 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 regulations within the Department of the Navy. 
 
     b.  Petitioner entered active duty with the Navy in May 2011.  He commenced mental health treatment in September 2015 before receiving in-patient care for anxiety and suicidal ideations in April 2018 resulting in a medical board referral in October 2018.  In the meantime, Petitioner submitted an unqualified resignation request on 15 August 2018.  The medical board referred Petitioner to the Physical Evaluation Board (PEB) for major depressive disorder and generalized anxiety disorder.  The PEB eventually found him unfit for active duty due to generalized anxiety disorder and referred his case to the Department of Veterans Affairs (VA) for a proposed disability rating.  However, his resignation request was approved by the Navy resulting in Petitioner’s discharge on 31 July 2019.  The VA proposed rating of 70% was returned on 8 August 2019 but, based on Petitioner’s discharge, his PEB case was terminated on 9 August 2019.   
 
     c.  This Board previously denied Petitioner’s request for disability retirement benefits based on an erroneous PEB document that showed he was assigned a 0% rating for his unfitting condition.  In correspondence attached at enclosures (2) and (3), the office having cognizance over Petitioner’s request to be placed on the disability retirement list determined that the evidence supports relief.  The opinion states that the 0% rating assigned to Petitioner was an administrative placeholder not meant to signify an actual disability rating.  Further, based on Petitioner’s symptoms and proposed VA rating, he qualified for placement on the Temporary Disability Retirement List (TDRL) for his unfitting condition with a 70% rating.  It was recommended that Petitioner’s discharge be set aside since there was no evidence he waived his Disability Evaluation System rights before he was discharge.  
                                    
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief.  In this regard, the Board concurred with the Advisory Opinions at enclosures (2) and (3).  Specifically, the Board determined that the preponderance of the evidence supports placing Petitioner on the TDRL for his Generalized Anxiety Disorder with a 70% rating consistent with the 8 August 2019 proposed VA rating in his case.  The Board determined Petitioner was unaware of the consequence of his resignation request, with regard to denial his disability benefits, when it was submitted prior to the initiation of his disability case.  In the interests of justice, the Board concluded it was appropriate to set aside his discharge in lieu of temporary disability retirement status.  The Board concurred that placement on the TDRL was appropriate since it was unclear Petitioner’s unfitting condition was stable.  Additionally, placement on the TDRL would allow the Navy to conduct a periodic physical examination of Petitioner in order for the PEB to issue a final adjudication in his case. 
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by placing Petitioner on the TDRL for Generalized Anxiety Disorder, VASRD DC 9400 at 70%, effective the date of his discharge.  Petitioner will be issued a new DD Form 214 consistent with this change.  Petitioner will undergo a periodic physical examination to allow 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 Regulation, 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 reference (a), has been approved by the Board on behalf of the Secretary of the Navy.