Docket No. 6441-20
Ref:   Signature  Date

From:  Chairman, Board for Correction of Naval Records 
To:    Secretary of the Navy 
 
Subj:  REVIEW OF NAVAL RECORD ICO FORMER MBR ,      USN 
 
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 reinstate him to the disability retirement list by changing his disability rating.    
                                              
2.  The Board, consisting of   reviewed Petitioner’s allegations of error and injustice on 22 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 the Navy in December 2004.  He suffered right leg injuries in a motor vehicle accident that resulted in his referral to the Disability Evaluation System and placement on the Temporary Disability Retirement List (TDRL) for Right closed femur fracture with Right knee traumatic arthrotomy as a related condition and right radius shaft fracture.  He was assigned disability ratings of 40% and 10%, respectively.  Petitioner was transferred to the TDRL effective 30 November 2015.   
 
     c.  On 17 September 2019, Petitioner was mailed orders to report for a TDRL periodic physical examination.  The examination was conducted on 6 January 2020 and concluded that Petitioner’s right closed femur fracture had improved significantly but he still experienced symptoms that included limping and required the use of a cane to ambulate.  Based on the TDRL periodic physical examination report, the Physical Evaluation Board (PEB) found Petitioner was still unfit for all his previously unfitting conditions.  However, they lowered his Right closed femur fracture rating to 10% based on the documented improvement in his symptoms.  A letter notifying Petitioner of the PEB findings was mailed to Petitioner in February 2020 that appears to have been delivered on 2 March 2020 based on U.S. Postal Service records.  However, Petitioner never responded to the PEB finding within the response period and was directed to be discharged with severance pay by President, PEB on 24 March 2020.  Petitioner alleges he never received the PEB findings and that his disability condition has not improved. 
                                     
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 the preponderance of the evidence supports returning Petitioner to the TDRL so he can be notified again of the PEB findings in his case and offered the opportunity to exercise his due process rights under the Disability Evaluation System to challenge the findings.  The Board found no error in the PEB findings based on lack of evidence submitted by Petitioner.  In addition, the Board found no error with the PEB notification process based on evidence the PEB findings were delivered by mail.  The Board also noted Petitioner’s mailing address has not changed during this entire time.  Despite these findings, the Board concluded  as a matter of injustice that Petitioner should be offered an opportunity to contest the PEB findings since he applied to this Board in a timely manner after his removal from the TDRL.   
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by reinstating him to the TDRL, effective the date of his removal, for the purpose of renotifying him of the PEB findings in his case.  Petitioner will be afforded all due process rights associated with the Disability Evaluation System.   
 
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.