From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 (2) Supplement submission of 17 August 2020 (3) Petitioner statement (4) Command statements (5) HQMC memorandum 1900 MMSR-4 of 23 September 2020 (6) Petitioner advisory opinion rebuttal of 12 October 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 grant him service credit to allow retirement with 20 years of service. Petitioner was previously denied relief by the Board. His most recent application was administratively closed for lack of new evidence. On 29 July 2020, the United States District Court for the remanded Petitioner’s case back to the Board to reconsider Petitioner’s most recent application. 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 reviewed Petitioner’s allegations of error and injustice on 19 November 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, Petitioner’s relevant naval service records, and applicable statutes, regulations and policies. Petitioner submitted enclosure (2) as supplemental matters for the Board’s consideration. 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 Marine Corps on 23 January 1980. On 22 September 1998, a medical board referred Petitioner to the Physical Evaluation Board (PEB) for his multiple sclerosis and related symptoms. The PEB found Petitioner unfit for continued naval service on 17 December 1998 due to his multiple sclerosis with blindness and bilateral optic neuropathy. He was assigned a disability rating of 100% and recommended for placement on the Permanent Disability Retirement List (PDRL). Petitioner eventually was transferred to the PDRL on 1 April 1999 based on a retirement date he requested. Petitioner was approximately 10 months from reaching 20 years of active duty service at the time of his transfer to the PDRL. c. Petitioner asserts that he was improperly advised by his PEB liaison officer (PEBLO) to accept placement on the PDRL despite his desire to complete 20 years of active duty service and earn a regular retirement. He argues that the stress of his illness and career caused him to make decisions that were not clearly thought out. He asserts that he relied entirely on the PEBLO for guidance since he was blind and could not read any of the documents. See enclosure (3). Statements from Petitioner’s command indicate that Petitioner would have been granted Permanent Limited Duty (PLD) until he reached retirement based on his continued superior performance. See enclosure (4). d. In correspondence attached at enclosure (5), the office having cognizance over Petitioner’s request for constructive service credit advised that the evidence does not support his request. The opinion stated there were no irregularities found in placing Petitioner on the PDRL and therefore recommended denial of his application. Petitioner provided rebuttal evidence in enclosure (6) that argues a clear injustice exists in Petitioner’s record, even if the Board were to find no error. Petitioner’s rebuttal notes that Petitioner is being denied approximately $30,000 a year in concurrent Department of Veterans Affairs (VA) benefits based on his placement on the PDRL. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting the corrective action discussed below. In reviewing the evidence in the case, the Board determined the preponderance of the evidence does not support a finding that an error exists in Petitioner’s record. His record establishes that the Marine Corps granted his request to be transferred to the PDRL on the date he requested. Despite this finding, the Board concluded that Petitioner should be granted sufficient constructive service credit to reach 20 years of active duty service and be placed on the retirement list based on his years of service. After considering the circumstances of his case, including the severity of his disability conditions and his inability to collect concurrent receipt of VA disability compensation, the Board felt that the interests of justice merit granting Petitioner the relief he requested. In the Board’s opinion, Petitioner deserves the benefit of the doubt based on his almost 20 years of honorable military service, his debilitating disability conditions, and the statements from his chain of command that indicate his PLD request would have been approved. The Board determined that granting Petitioner’s request may result in the recoupment of retirement pay, but that he would receive the benefit of VA concurrent receipt to eventually offset any losses. RECOMMENDATION That Petitioner’s naval record be corrected, where appropriate, to show that he was continued on active duty until he reached 20 years of active duty service and retired based on his years of qualifying service vice placement on the PDRL. Petitioner will be issued a new Certificate of Release or Discharge from Active Duty (DD Form 214) consistent with this change. 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. The foregoing action of the Board is submitted for your review and action. 12/7/2020