Dear This is in reference to United States Court of Federal Claims (Court) Order No. 17-1168C and 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. A three-member panel of the Board, sitting in executive session, considered your application on 4 February 2021. The names and votes of the members of the panel will be furnished upon request. Your allegations of error or injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this 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. In addition, the Board considered the advisory opinion contained in Commander, Navy Personnel Command letter 5400 Ser 95/687 of 17 December 2020 along with your responses to the opinion submitted on 7 January 2021 and 21 January 2021. Finally, the Board considered the evidence from your most recent application that was remanded to this Board for reconsideration, including the advisory opinions and your response to those opinions. The facts of your case remain unchanged. You entered service with the Navy Reserve in July 1989. During your career, you were credited with 20 years, 10 months of total qualifying service making you eligible for placement on the Reserve Retirement List. You served successfully without incident until 2014. During that year, you were mobilized and served in in support of contingency operations. Your initial fitness report ending on 6 February 2014 showed you were performing well, however, you were later involved in an incident where you took an unauthorized trip to . Your trip coincided with a terrorist bombing in that caused you to be in an unauthorized absence status during a mandatory recall. As a result, non-judicial punishment of a written reprimand and 30 days restriction was imposed on you. Shortly afterwards, you returned back to CONUS and received an adverse fitness report indicating significant problems with your performance. Upon returning to the United States, you reported to medical complaining of shoulder and back pain. In addition, you asserted witnessing deaths and wounded individuals in your Post-Deployment Health Assessment (PDHA) but did not mention a Traumatic Brain Injury. Eventually, you underwent surgery on your right shoulder on 1 October 2014. On 13 November 2014, you were “cleared for full duty and demobilization from orthopedics standpoint.” However, you later returned to medical to complain about your treatment and to raise new complaints about your back and mental health. As a result, you were diagnosed with an adjustment disorder on 17 December 2014 before being medically cleared for release from active duty in January 2015. During 2015, you continued to complain of shoulder pain and filed for Line of Duty (LOD) benefits. On 26 Feb 2015 and 5 June 2015, you were directed to show cause at a Board of Inquiry (BOI). The BOI recommended that you be retired based on a finding of substandard performance. This recommendation was ultimately approved by the Assistant Secretary of the Navy (Manpower and Reserve Affairs) on 18 February 2016. You were retired effective 1 March 2016. After your retirement, Commander, Navy Personnel Command issued an approval letter on 15 March 2016 granting authorization for LOD benefits from 30 January 2015 through 14 September 2016 for right shoulder impingement. The letter also directed the initiation of a medical board unless you were determined to be fit for duty. You subsequently filed an application with this Board requesting to rescind your retirement in order to allow participation in the LOD program. On 2 March 2017, this Board denied your request after finding that you were properly retired. This led you to file suit with the Court and the initial remand back to this Board. In response to the initial remand order, this Board sought advisory opinions from Director, Secretary of the Navy, Council of Review Board (CORB), and Navy Personnel Command. Senior Medical Advisor CORB provided an opinion that the evidence did not support a finding that you were unfit for continued naval service as a result of your reported disability conditions. After reviewing your medical and professional history, the Senior Medical Advisor concluded that there was insufficient evidence that any of your medical conditions sufficiently impaired your performance of duties while you were on active duty. The advisory opinion noted that you were issued the minimum compensable rating for your shoulder condition by the Department of Veterans Affairs (VA) and that your Post-Traumatic Stress Disorder (PTSD) was determined not to be incurred by your military service. Director CORB endorsed the Senior Medical Advisor opinion and stated that had you been referred to the Physical Evaluation Board, “a finding of fit to continue naval service would have been the likely result.” In addition to the medical evidence, both opinions also specifically relied on your ability to attend law school upon your release from active duty as evidence that you were likely fit to perform your primary function in the Navy Reserve as a Navy Human Resource Officer. Navy Personnel Command’s advisory opinion stated that the Navy failed to comply with DODI 1241.1 and SECNAVINST 1850.E in processing your request for disability benefits. The DoD instruction states that an interim LOD determination must be issued by a military department within 30 days of the occurrence of an injury, illness, or disease to a Reserve member while in a duty status. Since the Navy did not issue their LOD determination until approximately 14 months after they were required to do so, the opinion stated that you should have been eligible for LOD benefits from 30 January 2015 until your retirement date including incapacitation pay. The SECNAVINST provides that non-misconduct administrative separations do not supersede or preclude disability separation, and that final closure must occur on all disability processing prior to non-misconduct administrative separations. On 20 September 2018, this Board issued their second decision in your case. The Board noted that it had erroneously found that you were not eligible for disability benefits in its original review because you had been retired for substandard performance. However, the Board again found that you did not qualify for disability benefits because, based on your medical record, a Physical Evaluation Board would have found you fit for service. The Board also denied your request to rescind your retirement in order to allow participation in the LOD program after concluding that you were properly retired despite the Navy’s failure to process your LOD application in a timely manner. However, the Board did find that because of the late approval, you were never given a chance to apply for the benefits. Therefore, the Board concluded that the Navy’s error created “an injustice warranting relief.” The Board directed the Navy to allow you to submit the necessary documents to establish eligibility for retroactive LOD benefits for the 14 months from your release from active duty to your retirement from the Navy Reserve. The Board also moved your official date of retirement from March 1, 2016 to April 1, 2016. However, at the conclusion of this Board’s decision, you were unable to provide the necessary documentation to the Navy to qualify for incapacitation benefits resulting in the Navy’s denial of your application on 22 January 2020. On 30 September 2020, the Court remanded your case back to this Board to reconsider your documentation for your LOD benefits. The Court reasoned that your reported difficulties with securing records from 2015 and 2016 may have been partially caused by the Navy’s failure to timely rule on your LOD benefits. However, the Court also found that this Board’s decision to deny your request for disability benefits was “reasonable and supported by the record.” You disagreed with the Court’s ruling and filed for reconsideration of the Board’s decision to deny disability benefits when you submitted your evidence in support of the remanded LOD benefits issue. For efficiency purposes, the Board reconsidered your request to be placed on the disability retirement list together with your request for LOD benefits. Line of Duty Benefits Regarding the LOD benefits, the Board carefully considered your arguments that you deserve LOD benefits from 29 January 2015 until your retirement date. You questioned whether the Navy failed to properly consider your request for LOD benefits for your back and PTSD conditions since medical evidence shows that you received treatment for those conditions. You argued that the Navy improperly released you from active duty despite medical evidence that you were not medically fit for release. Finally, you argue that you are entitled to incapacitation pay from 29 January 2015 through 1 April 2016 due to a loss of civilian income from your LOD injuries. Ultimately, the Board determined you were not entitled to LOD benefits based on your right shoulder, PTSD, or your back condition. In making this finding, the Board determined that you failed to substantiate your inability to perform your civilian duties due to your right shoulder or any of the claimed conditions. First, the Board found no error with the Navy’s decision to release you from active duty since you were deemed medically fit for full duty and release from active duty on 13 November 2014. Since this medical determination was made approximately two months prior to your release from active duty, the Board concluded this was the best medical evidence in determining your medical fitness at the time of your discharge. The fact this finding of fit for full duty was also issued contemporaneously with your pending discharge after a review of all your medical conditions led the Board to conclude the preponderance of the evidence supports the Navy’s decision to release you from active duty. Additionally, the Board concluded that you were not entitled to LOD benefits for your PTSD or back condition since neither condition was determined to be incurred in the line of duty. The Board again relied on the 14 November 2014 fit for full duty determination, concluding your back condition was preexisting and not incurred in the line of duty. Further, the Board relied on the Department of Veterans Affairs determination that your PTSD was not service connected. As a result, the Board found that you failed to meet the statutory requirement that a disability condition must be incurred or aggravated by a period of qualifying duty for LOD benefits. Second, the Board concluded the preponderance of the evidence does not support granting your incapacitation pay from 29 January 2015 through 1 May 2016 for inability to perform military duties or loss of civilian income. As explained previously, the Board concluded you were fit for active duty when released on 29 January 2015, and therefore determined you did not qualify for incapacitation pay based on your inability to perform military duties. Concerning whether you qualified for incapacitation pay under the loss of civilian income, 37 U.S.C. § 204 authorizes the payment of incapacitation pay for members of the Reserve Component if the member suffers a loss of earned income from non-military employment or self-employment due to a LOD disability condition. DODI 1241.01, Enclosure (4), paragraph 2.c. states that incapacitation pay will be paid “only during the period an RC Service member is unable to perform military duties or demonstrates a loss of earned income from nonmilitary employment or self-employment as a result of an in-LOD condition.” This requirement is repeated in SECNAVINST 1770.5, Enclosure (2), paragraph 3.c. You provided multiple “Line of Duty Incapacitation Pay Request” forms dated 13 December 2018 covering the periods of 1 February 2015 through 29 February 2016 that document loss of income from your civilian employment. In reviewing these forms and the evidence you provided with your application, the Board was unable to determine whether your claimed loss of income for incapacitation pay purposes was related to your LOD approved right shoulder condition. The Board noted that “Section III – Medical Provider Work Certification” is not completed on any of your forms. This section certifies to the Navy that you were unable to work as a Management Analyst with the federal government because of your right shoulder condition. In addition, the Board noted that your employer was unable to certify whether you could work with restrictions in “Section IV” because the aforementioned medical certification was missing. As a result, the Board agreed with the Navy’s decision to deny your request for Incapacitation Pay due to lack of documentation. The Board concluded it was unclear based on the preponderance of the evidence whether you qualify for payment of incapacitation pay under DODI 1241.01 and SECNAVINST 1770.5 since both instructions require evidence that your loss of civilian income was the result of your LOD condition. The Board determined that the missing medical certification on your forms made that determination impossible to make. Further complicating the issue was that you commenced law school upon your release from active duty. This raised questions for the Board of why you were unable to perform your civilian employment duties as a result of your right shoulder but able to attend law school. Accordingly, the Board determined that insufficient evidence exists to approve incapacitation pay from 29 January 2015 through 1 May 2016. Disability Retirement Benefits Regarding your request for placement on the disability retirement list, the Board again concluded the preponderance of the evidence does not support relief. In making its findings, the Board adopted the findings and rationale from its 20 September 2018 decision. In order to qualify for placement on the disability retirement list, a member must be unable to perform the duties of their office, grade, rank or rating. The Board was unable to find that the evidence supported such a finding in your case prior to your release from active duty or retirement from the Navy Reserve. You argued that the previous decision to deny disability retirement benefits was limited to the question whether you were unfit at the time of your release from active duty and assert that you were unfit after your release from active duty. Contrary to your assertion, the Board concluded that the previous Board decision took into consideration your post-discharge activities such as your attendance at law school and Department of Veterans Affairs (VA) ratings in reaching the conclusion that there was insufficient evidence to find you unfit for continued naval service due to any disability condition. While the Board does not dispute that you suffered from multiple disability conditions, it found that there was no evidence any of those conditions prevented you from performing your duties until the date of your retirement. The Board was also not convinced by your arguments regarding your post-discharge VA rating of 100% since they noted you were rated at combined 80% by the VA in 2011 two years prior to your mobilization and deployment to . At that time, despite your 80% disability rating, you were performing your duties extremely well while deployed to a combat zone. That fact reinforced to the Board why VA ratings are not necessarily probative on the issue of unfitness 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. In your case, the Board felt that your 100% VA rating was not probative regarding your fitness for continued naval service since you demonstrated an ability to perform your duties at a high level despite possessing a similarly high disability rating from the VA for a number of years before your retirement. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record. 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 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, 3/1/2021 Deputy Director