Dear ,  
 
This letter responds to your application for correction of your naval record under Title 10, U.S. Code, section 1552.  The Board for Correction of Naval Records (the Board) denied your requested relief on 6 September 2018 and reconsideration on 30 January 2020.  On 10 June 2020, the United States Court of Federal Claims remanded your case and directed the Board to reconsider your application to the Board and any additional records submitted by you.  You responded to an inquiry from the Board on 10 June 2020 stating that you did not have any additional records to submit. 
The Board reconsidered your case in accordance with the court’s order and procedures that conform to Lipsman v. Secretary of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful consideration of the entire record, the Board found the evidence did not establish probable material error or injustice.  Thus, your application is denied. 

A three-member panel, sitting in executive session, considered your application on 18 June 2020.   The Board will provide the names and votes of the panel members upon request.  The Board reviewed your allegations of error and injustice under regulations and applicable procedures.  It considered your application, including all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies.  In addition, the Board considered your “Motion to File Evidence” filed with the United States Court of Federal Claims on 2 June 2020. 

A review of your record shows that you entered active duty with the Navy in September 1972.  You reported to medical on 12 October 1977 with injuries to your face and reported hitting a wall.  You were treated with sutures and returned back to full duty.  You served until the expiration of your term of enlistment and were discharged on 1 October 1980 with a RE-1 reenlistment code and an Honorable characterization of service.  Prior to your discharge from the Navy, you underwent a separation physical which cleared you for separation from active duty.  After your discharge, you enlisted with the Air Force Reserve until you decided to enlist in the Air National Guard in 1983.  As part of your Air National Guard enlistment, you underwent an enlistment physical on 19 November 1983 which medically cleared you to enlist.  You subsequently enlisted in the Air National Guard on 13 December 1983.  During your Air National Guard service, you commenced a period of active duty on 20 April 1984 and served until 30 May 1985.  You extended your Air National Guard enlistment on 22 November 1986 and served until your discharge on 27 October 1989 for unsatisfactory participation.   
 
Your Department of Veterans Affairs (VA) record shows that you were diagnosed with dysthymic disorder in 1996 but were later rated for psychotic disorder at 100% on 1 July 2008.  However, in 2017, the VA assigned you a retroactive rating of 70% for your psychotic disorder effective 27 February 1995 until its increase to 100% in 2008.  The VA also determined you were individually unemployable effective 27 February 1995.   On 26 August 2019, the United States Court of Appeals for Veterans Claims remanded your claim for Traumatic Brain Injury (TBI) after setting aside the VA’s decision to deny you a service connection.    

In your most recent application, you requested a disability discharge from the Navy effective 1 October 1980 due to “Traumatic Brain Injury involving internal brain damage (pituitary and thyroid glands, spinal cord injury) suffered in the line of duty on October 12, 1977 and Hyperthyroidism diagnosed on active duty on Mar  [sic] 2, 1979 resulting in the veteran’s termination of his active duty service and the suffering of mental disorders ‘psychosis’ which begun [sic] in service following the injury and for consequential unemployability as the result thereof lasting the veteran’s remainder of his civilian career including demotion and involuntary discharge fron  [sic] the  National Guard pursuant to 10 U.S.C. 1201, 1216a.”  You went on the explain that “unrelated head injury pursuant to standard care of TBI which involves enlargement of the pituitary gland, thyroid gland and injury to the spinal cord.  Diagnosis of Hyperthyroidism with residual diseases including Anxiety, Depression and mood swings left untreated by the military while on active duty which resulted in psychiatric diseases which begun [sic] in service and a lifetime of unemployability.  Veteran was incapacitated, was unfit to perform his military duties as required by his rank prior to discharge as demonstrated in the Mar [sic] 1980 military performance evaluation.”  Unfortunately, the Board determined that the preponderance of the evidence does not support a change to your narrative reason for separation to physical disability. 
 
Secretary of the Navy Instruction 1850.4 (1977) states that a service member is unfit due to a disability when the member is unable, because of the disease of injury, to perform the duties of their office, grade, rank or rating.  The mere presence of a physical disability condition does not, in itself, require a finding of unfitness since each case must be considered to determine the nature and degree of functional impairment produced by a physical disability.  Findings of unfitness for continued naval service are made by the Physical Evaluation Board (PEB) based on a medical board referral.  A medical board is required to refer a service member for consideration by the PEB in cases where the ability of a service member to continue to meet the physical requirements of active duty is in question.  If the PEB determines a service member meets the standard for unfitness, the service member may be discharged for the physical disability or placed on the disability retirement list depending on the disability rating assigned to the unfitting disability condition.  Therefore, in order for a service member to be discharged with a narrative reason for separation of physical disability, a service member must meet the criteria for unfitness, i.e. inability to perform the duties of their office, grade, rank or rating due to a disability condition.   

In determining whether you were unfit for continued naval service on 1 October 1980, the Board considered your arguments that you were suffering from a number of physical conditions including TBI, hyperthyroidism, enlargement to your Pituitary and Thyroid glands, and a spinal cord injury.  However, the Board noted that you were medically examined on 16 September 1980, approximately two weeks prior to your discharge from the Navy, and medically cleared for separation.  The purpose of the separation physical was to determine whether you were physically qualified for discharge from active duty and whether any physical conditions existed that required a referral for treatment or, in case you were unable to perform your duties due to a disability condition, a referral to the PEB.  As part of your September 1980 medical examination, you completed a “Report of Medical History” on a Standard Form 93 that asked you to explain your current health status and provide a medical history of any present or previous medical symptoms you experienced prior to the examination.  You wrote in the section provided to explain your current health status that you were “healthy” and not taking any medication.  In the section where you provide your current or past medical symptoms, you only listed Venereal Disease as a symptom with all other symptoms marked as “No.”  The second part of the separation physical is the medical examination by a qualified medical examiner.  That portion of the physical is documented on a “Report of Medical Examination” or Standard Form 88.  The Board noted on your Standard Form 88 from 16 September 1980, there were no significant medical conditions noted that prevented you from being medically qualified for discharge from active duty.  In addition to your 16 September 1980 separation physical, the Board examined your 19 November 1983 enlistment physical.  You reported during that examination that you were in “very good health,” listed no symptoms on your report of medical history, and were medically cleared to enlist in the Air National Guard.  Based on these two medical examinations, the Board concluded the preponderance of the evidence supports a finding that you were not symptomatic for any disability conditions on 1 October 1980.  While the Board considered your post-discharge medical diagnoses and VA assigned disability ratings, they concluded those were not probative on the issue of whether you were symptomatic on 1 October 1980.  The Board determined the VA evidence was too distant in time from your discharge date and felt the results of the medical examination conducted contemporaneously with your discharge from the Navy was better evidence in determining your fitness for continued naval service at the time.  The Board also considered the fact that 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.  So the fact the VA determined your current disability conditions were incurred or aggravated by your Navy active duty service as of 1995 did not convince them that you were necessarily symptomatic or unfit for continued naval service at the time of your discharge in 1980.    
 
Additionally, the Board considered your arguments that your performance evaluations near the end of your Navy enlistment substantiate your unfitness for continued naval service.  However, the Board was not persuaded that your difficulties with your performance were due to a disability condition.  Your performance evaluation ending on 1 October 1980 documented your marginal performance but attributed your performance to domestic issues and your preparation for transition to civilian life.  The Board also noted that, while you were not recommended for advancement, you were recommended for reenlistment and transfer to the Reserves.  So contrary to your argument that you were “terminated” from active duty Navy service due to a physical disability, the Board concluded you were eligible for reenlistment based on your 1 October 1980 performance evaluation and assigned reenlistment code.  The Board also considered the fact you successfully served in the Air National Guard starting approximately three years after your discharge from the Navy, including a period of active duty spanning 20 April 1984 to 30 May 1985, and extended your enlistment in November 1986.  In the Board’s opinion, your successful continuation of your military career through November 1986 was additional evidence that your performance difficulties near the end of your Navy enlistment were not due to any disability conditions but due to unrelated personal and transitional issues.  Based on the findings that you were not symptomatic for any disability conditions at the time of your discharge and that your performance issues were not disability related, the Board concluded you were, more likely than not, fit for continued active duty on 1 October 1980 and, therefore, not eligible for assignment of physical disability as your narrative reason for separation from the Navy.   As a result, the Board found no error with the Navy’s decision to discharge you for completion of your term of enlistment. 
 
The Board also considered whether your post-Navy record of unemployability and disability conditions merit a change to your narrative reason for separation as a matter of injustice.  After weighing the evidence, the Board concluded no change to your record was warranted.  In the Board’s opinion, you are being appropriately compensated for your service connected disability conditions based on your 100% VA rating that entitles you to a significant tax-free monthly payment, free VA medical treatment, and other related disability benefits such as a waiver of VA loan fees.  Further, the Board felt that any changes in your military record should be from your time after your Navy service since you allege your disability symptoms later resulted in your “demotion” and “involuntary discharge” from the Air National Guard.  As explained above, the Board concluded none of those symptoms existed at the time of your discharge from the Navy based on your medical history statement and a medical examination.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.     
 
The Board regrets that the circumstances of your case are such that favorable action cannot be taken at this time.  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.  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 show the existence of probable material error or injustice. 

Sincerely,    
6/29/2020