Docket No: 428-20 Ref: Signature Date Dear This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code. After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits. A three-member panel of the Board, sitting in executive session, considered your application on 8 February 2021. The names and votes of the panel members will be furnished upon request. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of the Board. Documentary material considered by the Board consisted of your application together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies, and the relevant Advisory Opinion along with your rebuttal. The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Marine Corps and began a period of active duty on 11 December 2000. In February to August 2004, you deployed to Iraq in support of Operation Iraqi Freedom. In your application to the Board, you state that while you were on tour in March 2004, you were shot in the chest during a gunfight while performing a home entry and were knocked unconscious for 15 minutes. Your record indicates that in 2006, you were evaluated at National Naval Medical Center Bethesda and diagnosed in part with chronic Post Traumatic Stress Disorder (PTSD). In May to December 2009, you deployed again, this time to Afghanistan in support of Operation Enduring Freedom. Your medical record indicates that in October 2010, you reported having struggled with migraine headaches for about 1.5 years. In 2011, you were placed on a period of Limited Duty for PTSD, left knee patellofemoral syndrome and chronic right groin pain. On 19 June 2012, Commanding Officer, provided a Non-Medical Assessment dated 19 June 2012, in which he stated in part that you were not world-wide deployable due to physical limitation and that due to your physical injuries, it was impossible for you to participate in any of the Company’s physical training events. In the fall of 2012, an Informal Physical Evaluation Board (IPEB) convened and found you unfit for continued service due to Chronic Right Inguinodynia; the PEB noted four additional conditions (Category III) that were not separately unfitting to include chronic left knee pain, chronic left shoulder pain, chronic left wrist pain, and PTSD. The PEB directed that you be separated from Active Duty with severance pay with a combined disability rating of 0%. You were provided an IDES Election of Options form and accepted the IPEB findings as indicated by your initials on the IDES Election of Options form, dated 9 November 2012. On 30 January 2013, you were discharged from the Marine Corps, on the basis of Disability, with Severance Pay, Non-Combat (Enhanced), and received an honorable characterization of service. In March 2013, Veterans Affairs rated you with a combined 80% disability rating, in part due to a 70% disability rating for PTSD and a 30% disability rating for migraine headaches. In your application to the Board, you request that your military record be corrected to show that you were found unfit for continued military service and medically retired due to PTSD and migraine headaches, with a 30% or higher disability rating. You note that you participated in two overseas deployments, and experienced heavy combat. You recount witnessing fellow Marines lose life and limb, being shot in the chest, and being knocked unconscious by close proximity to detonated improvised explosive devices. You cite that you were diagnosed with PTSD as early as 2006, and state that you suffered from severe migraine headaches and tinnitus symptoms of a traumatic brain injury (TBI). You contend that due to PTSD and debilitating migraines, you should have been found unfit for further military service and medically retired with entitlement to a monthly military disability pension and TRICARE. You assert that the military PEB incorrectly ignored your PTSD and TBI-related symptoms (to include chronic migraines). You contend that although you were separated from active duty with severance pay, you were wrongfully denied medical retirement. You claim that the PEB erred by not finding you unfit for military service due to PTSD and that the PEB erred by not considering your TBI condition. You state that had the PEB properly evaluated your service-related conditions in accordance with Navy regulations and relevant case law, you would have been entitled to military disability retirement. As part of the review process, a Senior Medical Advisor, Secretary of the Navy, Council of Review Boards (CORB) issued an Advisory Opinion dated 18 September 2020. The Advisory Opinion reviewed your request to the Board, and noted your claim of unfitness due to PTSD and TBI with related migraines. The Advisory Opinion considered in part that you suffered significant stressors due to your two deployments, and that you have a diagnosis of chronic PTSD as well as documented migraine headaches. The Advisory Opinion found that although you reported a blast exposure history in your military medical evaluations, there is no documentation of head trauma in your military treatment record. The Advisory Opinion considered that you were referred to the PEB due to non-mental health related physical restrictions, and that your resultant finding of unfitness was for Right Chronic Inguinodynia. The Advisory Opinion concluded that there is an absence of objective evidence of unfitness attributable, either individually or in combined effect to the conditions of PTSD and TBI-related Migraine Headaches during the year prior to your separation. Accordingly, the Advisory Opinion concluded that there is insufficient support for your request. You were provided a copy of the Advisory Opinion, and given an opportunity to respond. You subsequently submitted a 21 January 2021 rebuttal in which you take issue with the Advisory Opinion and state the Board should reject it due in part to the anonymity of the author and because the evidence upon which the advisor relies does not support the opinion’s conclusions. You state that the opinion ignores your medical records going back to 2006, which document multiple traumas that you experienced in theater and the subsequent migraines that followed. You state that just six months prior to your separation, you were experiencing 12 migraines per month, half of which were prostrating. You also claim that the Advisory Opinion repeatedly punishes you for a single PDHRA, AHLTA questionnaire which inaccurately reports the head injuries that you experienced. You also contend that the opinion fails to engage with your sworn affidavit which details multiple occasions of in-service head trauma. The Board carefully considered the relevant information in your application to include the information you provided to the Board, the Advisory Opinion, your available records, and the rebuttal to the Advisory Opinion. The Board weighed your assertions of error and injustice, specifically to include your claim that your PTSD and TBI with resultant migraines were not properly evaluated by the Board. The Board was empathetic to the information in your personal statement, considered your in-service PTSD diagnosis and documented struggle with migraines, and noted your tremendous contribution to the Marine Corps by participating in two combat deployments. Nonetheless, the Board noted that SECNAVINST 1850.4 series states a finding of fitness for continued duty is based on evidence that establishes that a member is reasonably able to perform the duties of his or her officer, grade, rank or rating. Furthermore, SECNAVINST 1850.4 series states that with a finding of fit to continue naval service is the understanding that the mere presence of a diagnosis is not synonymous with a disability. Even in consideration of your diagnosed PTSD and taking into account your personal statement about head trauma coupled with your in-service record of migraines, the Board found that the mere presence of PTSD and migraines is not sufficient to establish an unfitting condition or disability that merits a disability separation or retirement. The Board, like the Advisory Opinion, noted that you were referred to the PEB process for a non-mental health condition. The November 2012 PEB Findings reflect that the Board (which included a Medical Officer) considered PTSD but found that it was not a condition that was separately unfitting nor did it contribute to your unfitting condition of Chronic Right Inguinodynia. Additionally, you accepted the IPEB findings in the IDES Election of Options Form dated 19 November 2012. The Board concurred with the Advisory Opinion and determined that you did not provide sufficient evidence to establish that either PTSD or TBI with resultant migraines rendered you unfit for duty and thereby merited a disability retirement on the basis of either condition. The Board did take into consideration your request to disregard the Advisory Opinion but found that redacting the personal information of the Senior Medical Advisory who authored the advisory did not materially impact the validity of the content, analysis, or opinion issued on behalf of the CORB. Furthermore, the Board noted that the Advisory Opinion provided a detailed account of the information reflected in your available military medical record to include entries dating back to 25 October 2006. The Board determined that the Advisory Opinion should be taken into consideration, but noted your objections. The Board gave your personal accounts of in-service concussive events considerable weight, and found that a singular Post-Deployment Health Reassessment Armed Forces Health Longitudinal Technology Application entry did not necessarily capture the totality of your experiences or your medical conditions. However, the Board noted that the presence of PTSD, TBI, and/or head-trauma related migraines do not establish entitlement to a disability separation or medical retirement. Such a condition or disability must render the member unfit. When evaluating your contentions that you should have been found unfit and medically retired for PTSD and migraine headaches, the Board concurred with the Advisory Opinion in finding that there is insufficient evidence to support that PTSD, TBI alone, or service-connected migraines impacted your fitness for duty and rendered you unfit. The Board noted that the PEB had information regarding your PTSD as evidence by its identifying PTSD as a Category III non-contributing or separately unfitting condition. Additionally, the Board noted that you accepted the findings of the informal PEB and did not seek a formal PEB to contest your fitness determination. The Board concluded that your current discharge was issued without error or injustice, and that corrective action is not warranted. You are entitled to have the Board reconsider its decision upon 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. In this regard, 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 demonstrate the existence of probable material error or injustice. Sincerely, 2/25/2021 Deputy Director