DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2262-17 APR 2 9 2018 From: Chairman, Board for Correction ofNaval Records To: Secretary ofthe Navy Subj: Ref: (a) Title 10 U.S.C. 1552 Encl: (I) DD Form 149 w/attachments (2) Director CORB ltr 5220 CORB: 002 of 6 Feb 18 (3) Director CORB ltr 1850 CORB: 003 of 14 Apr 15 1. Pursuant to the provisions of reference (a) Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to place him on the Disability Retirement List. 2. The Board, consisting of , reviewed Petitioner's allegations oferror and injustice on 29 March 2018 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 ofthe enclosures, naval records, and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinion contained in enclosure (2); a copy of which was previously provided to the Petitioner for comment. 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 ofthe Navy. b. Petitioner entered service with the Marine Corps Reserve in May 1982. On 16 June 2014, a medical board referred him to the Physical Evaluation Board (PEB) for bilateral glenohumeral osteoarthritis. The informal PEB found Petitioner unfit for his right shoulder and adopted the 20% disability rating issued by the Department of Veterans Affairs (VA). c. Petitioner requested reconsideration of the VA's disability rating for his right shoulder and requested a formal PEB hearing. He argued that his left shoulder and a bilateral cervical radiculopathy conditions were also unfitting along with his right shoulder. The PEB forwarded Petitioner's request for reconsideration to the VA prior to the results of his formal PEB were available to Petitioner. The formal PEB had determined that Petitioner was unfit for bilateral glenohumeral osteoarthritis. The VA denied Petitioner's request for reconsideration and lowered his right shoulder rating to 10% in addition to rating his left shoulder at 10%. Consequently, Petitioner's combined rating remained unchanged despite the new unfitting condition: d. Petitioner filed a Petition for Relief with Director, SECNAV Council of Review Boards (CORB) arguing that his PEB process was flawed since his reconsideration request to the VA was forwarded before the announcement of his formal PEB hearing results. He argued this error resulted in the VA lowering his original rating from 20% to 10%. Director CORB agreed the result may have created an inequitable result but the PEB was regulation bound to accept the VA's ratings. See enclosure (3). e. On 20 June 2015, Petitioner was placed on the retired reserve list pursuant to his request. f. In enclosure (2), Director CORB recommends no relief but acknowledges there was a deviation in internal PEB policy. However, he states Petitioner was assigned a valid VA rating based on his request for reconsideration and the rating was adopted by the PEB in accordance with disability regulations. He also states that had the PEB relied upon on the original rating, Petitioner would have been issued a combined 30% rating. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting the following corrective action. The Board concluded that the circumstances of Petitioner's PEB case created an injustice that should be remedied through his placement on the Permanent Disability Retirement List. While the Board concluded no legal error was committed by the PEB, they felt the unintentional deviation in internal processing policy created a situation where Petitioner was treated differently and unfairly by the PEB compared to other Servicemembers. The Board believes that Petitioner likely would not have requested reconsideration of his original VA rating for his right shoulder had he been aware the formal PEB had found him unfit for his left shoulder. This would have resulted in a combined 30% disability rating and placement on the disability retirement list. In order the correct this injustice, the Board determined Petitioner's record should be changed to reflect he did not request reconsideration of the VA ratings resulting in a combined 30% disability rating. The Board also concluded Petitioner should be placed on the Permanent Disability Retirement List to avoid a replication of the situation where the PEB may be bound by the VA's rating of Petitioner's condition should they be required to reevaluate his condition. In addition, based on Petitioner's age, the Board determined his condition was permanent and stable. RECOMMENDATION That Petitioner's naval record be corrected, where appropriate, to show that: Petitioner did not request reconsideration ofVA's rating for his right shoulder glenohumeral osteoarthritis. with a disability rating of20%, and Glenohumeral Osteoarthritis of the Left Shoulder, VASRD 5201-50 IO, with a disability rating of l0%, resulting in a combined rating of 30%. No other relief be granted. A copy of this Report of Proceedings will be filed in Petitioner's naval record. 4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction ofNaval Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that a quorum was present at the Board's review and deliberations, and that the egoing is a true and complete record ofthe Board's proceedings in the above e Executive Director