DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 5681-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO FORMER Ref: (a) Title 10 U.S.C. 1552 (b) Medical/Psychiatric Advisor CORB letter 1910 CORB: 002 of 13 January 2021 (c) Director CORB letter 1910 CORB: 001 of 4 February 2021 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). 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 6 May 2021, 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 the 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 Marine Corps in 2004 and was eventually selected as an officer candidate under the Marine Corps Enlisted Commissioning Education Program (MECEP). In 2012, Petitioner enrolled in Naval Reserve Officer Training Corps and college as a MECEP student. However, he subsequently suffered personal problems that led to a hospitalization for mental health symptoms and diagnoses of Major Depressive Disorder, alcohol dependence, and Attention Deficit Hyperactivity Disorder. This eventually led to Petitioner’s first placement on limited duty and attrition from the MECEP. c. In the meantime, Petitioner was involved in a domestic dispute that resulted in his apprehension by civilian authorities. While under their custody, Petitioner suffered multiple injuries due to their actions that were later deemed excessive as part of a successful lawsuit against the authorities. However, Petitioner pled no contest to the charges that led to his apprehension. This formed the basis for Petitioner’s administrative separation processing 2014 and his removal from the Disability Evaluation System. In the end, Petitioner was retained by an administrative separation board in December 2014. d. After the conclusion of his administrative separation processing, Petitioner received orders to another duty station. At this time, he continued to complain of cognitive related symptoms and pain but was determined to be fit for duty based on Petitioner’s ability to pass the Physical Fitness Test and perform his assigned duties. However, Petitioner continued to report cognitive deficits and mental health symptoms that resulted in multiple evaluations. He was diagnosed with Somatic Symptom Disorder, Unspecified Neurocognitive Disorder, and Unspecified Depressive Disorder. Petitioner was also prescribed a number of medication including Seroquel XR. Petitioner asserts that this medication was the primary cause of weight gain that commenced in this time period and resulted in his placement in the Board Composition Program (BCP) in May 2016. e. Petitioner continued his psychological testing in 2016 and was again diagnosed with Major Depressive Disorder after testing at Walter Reed National Military Medical Center. He was again placed on limited duty and referred to the Physical Evaluation Board (PEB) in November 2016. At this time, Petitioner was issues a number of duty restrictions including weapons and classified materials access. He was also diagnosed with Traumatic Brain Injury (TBI) that was referred to the PEB. f. In December 2016, Petitioner was counseled for unsatisfactory performance due to his lack of progress in the BCP. It was about this time, Petitioner asserts he stopped taking Seroquel XR because of its negative side effects including weight gain. g. Petitioner’s command provided a non-medical assessment stating that he was unable to perform the duties of his MOS since he was ineligible for a security clearance, was not worldwide deployable, and still assigned to the BCP. The assessment further noted Petitioner was working outside his MOS, was at high year tenure, and expressed a desire to separate from the Marine Corps. In March 2017, the PEB found Petitioner fit to continue on active duty based on the February 2016 fit for duty determination and lack of evidence that he was unable to perform his duties. Petitioner requested a formal PEB hearing but was denied on 11 May 2017. h. On 4 April 2017, Petitioner was notified of administrative separation processing for unsatisfactory performance due to his inability to maintain Marine Corps weight standards. Despite his arguments that his weight gain was caused by his medication and lack of food options while receiving treatment at Walter Reed, Petitioner was discharged on 8 August 2017 with a General characterization of service. Post-discharge, the Department of Veterans Affairs rated Petitioner for Post-Traumatic Stress Disorder (PTSD) with Major Depressive Disorder, Unspecified Neurocognitive Disorder, Alcohol Use, and TBI at 100% effective the day after his discharge from the Marine Corps. i. References (b) and (c) were submitted as advisory opinions in Petitioner’s case and provided to him for comment. He submitted a response to the opinions that was considered by the Board in making their findings. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial relief. Specifically, as a matter of injustice, the Board concluded Petitioner’s characterization of service should be upgraded to Honorable and his narrative reason for separation changed to Secretarial Authority. In reviewing the evidence, the Board concluded Petitioner’s medical conditions, more likely than not, negatively impacted his ability to maintain his weight and resulted in his administrative separation. While the Board determined Petitioner was ultimately responsible for maintaining his weight within Marine Corps standards and found no direct evidence that his medical conditions or prescribed medication caused him to gain weight and prevented him from losing weight, they determined the preponderance of the evidence supports the relief granted after considering his medical conditions as mitigation. Regarding Petitioner’s request to be promoted to E6, the Board concluded the preponderance of the evidence does not support relief. The Board determined it lacked evidence that Petitioner would have selected for promotion to E6 but for his weight gain. In reviewing his record, the Board noted Petitioner’s record was unremarkable since he was performing administrative duties outside his MOS after his removal from MECEP. In addition, despite evidence Petitioner was mistreated by civilian authorities while in their custody, the Board noted Petitioner pled no contest to his civilian misconduct. These factors were considered in concluding there was insufficient evidence to support a finding Petitioner would have promoted to E-6 but for his weight gain. Regarding Petitioner’s request to be placed on the disability retirement list for PTSD, Major Depressive Disorder, TBI, and Unspecified Neurocognitive Disorder, the Board determined the preponderance of the evidence does not support relief. The Board substantially concurred with the advisory opinions in the case in finding that the PEB did not err in their findings. As summarized in the advisory opinion, in order to qualify for military disability benefits through the Disability Evaluation System with a finding of unfitness, a service member must be unable to perform the duties of their office, grade, rank or rating as a result of a qualifying disability condition. Alternatively, a member may be found unfit if their disability represents a decided medical risk to the health or the member or to the welfare or safety of other members; or the member’s disability imposes unreasonable requirements on the military to maintain or protect the member. While the Board noted the multiple treatments and diagnoses Petitioner received prior to his referral to the Disability Evaluation System in 2016, the Board felt the preponderance of the evidence did not support a finding that he met any of the criteria for unfitness. Most important in their determination was Petitioner’s performance. As argued by Petitioner, he felt that his performance was adequate to merit promotion to E6 had he not suffered from weight gain. The Board also found no evidence that Petitioner was performing poorly in his assigned duties despite their determination that they lacked evidence he was competitive for promotion to E6. Therefore, in the Board’s opinion, Petitioner was able to perform the duties of a Marine Corps E5 as evidenced by his own assessment of his performance and the lack of documented performance issues other than his weight gain. While Petitioner argues correctly that he was likely not able to perform the duties of his MOS, the Board found that argument unpersuasive since the disability regulations allow a service member to be found fit should they reasonably be able to perform the duties of their office, grade, rank, or rating. Since there is no evidence Petitioner’s assigned duties prior to his discharge were not E5 duties or that he was unable to perform them, the Board determined the preponderance of the evidence did not support a finding that he was unfit due to his claimed disability conditions. In making their findings, the Board also considered whether the overall effect of two or more of Petitioner’s disability conditions would result in a finding on unfitness. In the end, the Board concluded it would not since the evidence established that Petitioner adequately performed his duties until he was referred for physical evaluation. Therefore, despite medical evidence that later indicated his questionable physical ability to continue to perform his duties, he was properly found fit by the PEB. The Board also considered Petitioner’s VA ratings as part of their analysis. However, they did not find that evidence persuasive since 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. Accordingly, the Board concluded the preponderance of the evidence did not support his placement on the disability retirement list. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by changing his characterization of service from General under Honorable conditions to Honorable. In addition, Petitioner’s narrative reason for separation shall be changed to “Secretarial Authority” and his SPD code to “JFF.” Petitioner will be issued a new 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. 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. 5/14/2021 4