From:  Chairman, Board for Correction of Naval Records 
To:      Secretary of the Navy 
 
Subj:   REVIEW OF NAVAL RECORD ICO FORMER MBR    XXX-XX- 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 her naval record be corrected to establish Petitioner’s placement on the Permanent Disability Retirement List (PDRL) and payment of retirement pay.    
                                              
2.  The Board, consisting of  reviewed Petitioner’s allegations of error and injustice on 14 January 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 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 Navy in 2009 but was referred to the Physical Evaluation Board (PEB) in 2011 for Chronic Daily Headaches.  The PEB found her unfit for her headaches and assigned her a disability rating of 50% resulting in her placement on the Temporary Disability Retirement List (TDRL).  On 26 February 2012, Petitioner was transferred to the TDRL and commences receiving retirement pay until she became eligible for receipt of Department of Veterans Affairs (VA) Compensation and Pension payments effective 1 August 2012.  From that date forward, Petitioner received VA compensation in lieu of military retirement pay since she was required to waive her retirement pay in order to receive VA compensation. 
 
     c.  Petitioner was administratively removed from the TDRL effective 14 March 2018 after failing to attend her final periodic examination. 
                                     
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 no error was committed by the PEB in administratively removing Petitioner from the TDRL since it was her responsibility to maintain a current address with the Navy in order to receive TDRL related correspondence.  However, the Board also determined an injustice exists in Petitioner’s record that should be addressed by reinstating her to the TDRL to allow her another opportunity to attend a final periodic examination so the PEB may issue a final adjudication in her case.  The Board felt denying Petitioner the potential for retirement benefits due to her lack of diligence would perpetuate an injustice since Petitioner submitted her request to be reinstated to the TDRL in a reasonable time.   
 
Despite the Board’s finding that depriving her of a final examination and adjudication by the PEB would be an injustice, the Board felt placing Petitioner on the PDRL was not warranted at this time.  In their opinion, there was insufficient evidence to adjudicate Petitioner’s condition and determined a new examination was appropriate to allow the PEB to make an adjudication.  Further, the Board found no evidence of an error regarding Petitioner’s pay status.  Pay records show Petitioner received military retirement pay upon her placement on the TDRL until she commenced receiving VA compensation.  Since Petitioner was not statutorily eligible to receive concurrent receipt of VA compensation and military retirement pay, she waived her right to military retirement pay effective 30 July 2012 in order to receive a higher level of VA compensation than her military retirement pay. 
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner was reinstated to the Temporary Disability Retirement List effective the date of this letter.  The sole purpose of her reinstatement is so she may undergo a physical examination and have the Physical Evaluation Board make a final determination of her disability status in accordance with Title 10, U.S. Code, Section 1210.  All due process rights associated with the Disability Evaluation System will be afforded to the Petitioner as part of the Physical Evaluation Board review.   
 
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.  
              
1/16/2021
Deputy Director