From:  Chairman, Board for Correction of Naval Records 
To:      Secretary of the Navy 
 
Subj:   REVIEW OF NAVAL RECORD  
  
 
Ref: (a) Title 10 U.S.C. 1552 
 
Encl:(1) DD Form 149 w/attachments 
 
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 Permanent Disability Retirement List (PDRL).    
                                              
2.  The Board, consisting of     , reviewed Petitioner’s allegations of error and injustice on 1 October 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 September 2004 and served as a Hospital Corpsman.  After deploying in support of combat operations in  in 2008, Petitioner was diagnosed with Post-Traumatic Stress Disorder (PTSD).  He was eventually referred to the Physical Evaluation Board (PEB) and found unfit for PTSD.  After receiving a disability rating of 30% for his PTSD, Petitioner was transferred to the Temporary Disability Retirement List (TDRL) on 28 March 2013.  However, after failing to attend his final TDRL physical examination, Petitioner was administratively removed from the TDRL after the conclusion of the statutory period. 
 
     c.   Petitioner argues that he should be placed on the PDRL since his PTSD condition has continued to be rated by the Department of Veterans Affairs at 50%.  He also argues that he did not attend his required periodic examinations since he was suffering from the effects of his PTSD. 
 
                                     
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 attend his final periodic physical examination.  However, the Board also determined 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 felt denying Petitioner the potential for retirement benefits due to his lack of diligence would perpetuate an injustice since Petitioner submitted his request to be reinstated to the TDRL within in a reasonable time of being removed from the list.  In making their findings, the Board also considered the Petitioner’s disability condition and how it may have impacted his decision not to attend his final physical examination.  The Board took into consideration that no additional TDRL pay will be due to Petitioner as a result of their recommended change.      
 
Despite the Board’s finding that depriving him of a final examination and adjudication by the PEB would be an injustice, the Board felt placing Petitioner on the PDRL was not warranted at this time.  In their opinion, there was insufficient evidence to adjudicate Petitioner’s condition and determined a new examination was appropriate to allow the PEB to make an accurate adjudication.   
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected reinstating him to the TDRL effective the date of this letter.  The sole purpose of his reinstatement is so he may undergo a physical examination and have the PEB 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 PEB 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.