DEPARTMENT OF THE NAVY 

BOARD FOR CORRi"CTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 1735-17 
FEB 25 2018 

From: Chairman, Board for Correction ofNaval Records 
To: Secretary ofthe Navy 

Subj: REVIEW OF NAVAL RECORD ICO 

Ref: (a) Title 10 U.S.C. 1552 

Encl: (1) DD Form 149 w/attachments 
(2) Subject's naval record 

1. Pursuant to the provisions ofreference (a) Subject, hereinafter referred to as Petitioner, filed 
enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected 
to add Traumatic Brain Injury (TBI) as an unfitting condition to his Physical Evaluation Board 
(PEB) record, designate his PEB disabilities as combat-related, and change to his line of duty 
authorization to reflect a non-drilling status to include pay through the date ofhis placement on 
the Permanent Disability Retirement List (PDRL). 

2. The Board, consisting of         , reviewed Petitioner's 
allegations of error and injustice on 1 February 2018 and, pursuant to its regulations, determined 
that the corrective action indicated below should be taken on the available evidence ofrecord. 
Documentary material considered by the Board consisted ofthe enclosures, relevant portions of 
naval records, and applicable statutes, regulations and policies. In addition, the Board 
considered the advisory opinions contained in CNPC ltr 5740 Ser 95/664 of24 Oct 2017 and 
Director CORB ltr 1910 CORB: 002 of22 Nov 2017; copies ofwhich were provided to the 
Petitioner for comment. 

3. The Board, having reviewed all the facts ofrecord 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 ofthe Navy. 

b. Petitioner initially entered active duty with the Navy in 1984 and completed his enlistment 
obligation. He eventually reentered the Navy Reserve in 2006. 

c. On 20 June 2011, Petitioner Jost consciousness during training after feeling neck and arm 
pain. He later underwent surgery to correct a neck condition but was later referred to a medical 
board for chronic neck and face pain along with dizziness symptoms. 

d. On 16 May 2013, the PEB found Petitioner unfit for continued naval service due to 
Chronic Pain SIP Cervical Discetomy Fusion and Vertigo. Post-Traumatic Stress Disorder, TBI, 
and Trigeminal Neuralgia were not considered separate unfitting conditions. The Department of 
Veterans Affairs originally assigned him a combined 30% disability rating for his unfitting 
conditions but later increased the rating to 40% upon reconsideration. Petitioner accepted the 
findings and was placed on the PDRL effective 29 July 2013. 

e. Petitioner had also filed for line of duty payments due to his disability condition. He was 
paid as a Drilling Reservist and received his last payment on 26 May 2013 totaling $59,734.14. 
f. Petitioner has continued to receive treatment for various service connected disability 
conditions after his placement on the PDRL. 

CONCLUSION 

Upon review and consideration ofall the evidence of record, the Board finds the existence of an 
injustice warranting the following partial corrective action. 

The Board concluded that Petitioner is entitled to have his pay record changed to reflect his 
status as a non-drilling Reservist for Line ofDuty purposes and receive payment through 28 July 
2013. In making this finding, the Board substantially concurred with the advisory opinion 
contained in CNPC ltr 5740 Ser 95/664 of24 Oct 2017. Total payment of back pay was 
determined to be $52,902.14. 

However, the Board concluded no additional relief was warranted in Petitioner's case. The 
Board disagreed with Petitioner's rationale for changing his PEB record. In making their 
findings, the Board substantially concurred with the advisory opinion contained in Director 
CORB ltr 1910 CORB: 002 of22 Nov 2017. Specifically, the Board agreed that the evidence 
did not support a finding ofunfitness for the conditions requested by the Petitioner. The fact the 
Petitioner continues to suffer from various service connected disabilities after his placement on 
the PDRL did not convince the Board those conditions were unfitting on 28 July 2013. The 
Board could not find evidence that shows Petitioner's case was not thoroughly reviewed and 
considered by the PEB before making their decision. In addition, the Board felt Petitioner 
received the due process required under the disability regulations that allowed him to challenge 
the PEB findings at the time. Finally, the Board determined that Petitioner had failed to exhaust 
his administrative remedies by not appealing the PEB' s finding that his disability conditions 
were not combat-related. The Office ofthe Judge Advocate General (JAG) is the appellate 
authority for combat-related determinations by the PEB and there was no evidence in the record 
to indicate Petitioner exhausted this administrative remedy. Accordingly, the Board determined 
his request was not ripe for Board consideration and deferred action until an appeal to JAG is 
completed. 

RECOMMENDATION: 

That Petitioner's naval record be corrected, where appropriate, to show that: 

Petitioner filed for non-drilling line of duty status, vice drilling line of duty status, and was 
approved through 28 July 2013. Petitioner should receive back pay in the amount of$52,902.14 
or another amount determined to be appropriate after his new entitlements are recalculated. No 
other relief is warranted. 

A copy ofthis Report of Proceedings will be filed in Petitioner's naval record. 

4. It is certified that quorum was present at the Board's review and deliberations, and that the 
foregoing is a true and complete record of the Board procedings in he above entitled matter. 

5. Pursuant to the delegation of authority set ou in ection 6(e) of the revised Procedures ofthe 
Board for Correction ofNaval Records (32 Code ofFederal Regulations, 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 ofthe Navy. 

Executive Director