DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9723-17 AUG 2 7 2018 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO FORMER MBR Ref: (a) Title 10 U.S.C. 1552 Encl: (I) DD Form 149 w/attachments (2) Subject's naval record I. 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 reflect his disability conditions, for which he was found unfit, were incurred in the line of duty. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 9 August 2018 and, pursuant to its regulatfons, 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 Petitioner's naval records, and applicable statutes, regulations and policies. 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 entered service with the Marine Corps in February 2007. He was deployed to Afghanistan from March 2010 through 28 September 2010 during which he suffered symptoms related to post-concussive syndrome and a Traumatic Brain Injury (TBI) caused by his exposure to an Improvised Explosive Device explosion. Petitioner was not evacuated out from Afghanistan but received treatment for his symptoms even after returning from his deployment. c. On 2 October 2012, Petitioner was involved in an alcohol incident while in Oman. He drank at least seven alcoholic beverages in violation of a direct order, disobeyed a direct order from his superior, and was drunk and disorderly. He also struck his head multiple times on a hard surface, as he was being removed from a hotel water fountain, after falling into the fountain while intoxicated. During his transport to treatment, he suffered seizures while passing in and out ofconsciousness. Despite a CT scan that showed no intracranial issues, he continued to suffer from multiple symptoms that eventually were referred to a medical board. d. On 11 October 2012, a line of duty investigation determined Petitioner's injuries were incurred not in the line of duty, but as a result of his misconduct Petitioner was eventually convicted at a Special Court-Martial for his misconduct on 23 October 2013. e. Petitioner continued to receive treatment for a number of conditions that were referred to the Physical Evaluation Board (PEB) by a medical board. He was referred for post-traumatic headaches, sleep disorder, mood disorder, cognitive disorder, memory lapses or loss, anxiety disorder, myalgia and myositis, somatic dysfunction of sternochondrial region, segmental dysfunction ofthe cervical region, segmental dysfunction ofthoracic region, TBI, and postconcussion syndrome. f. The PEB found Petitioner unfit for continued naval service due to TBI, post-traumatic headaches, sleep disorder, mood disorder, cognitive disorder, memory lapses or loss, myalgia and myositis, somatic dysfunction of sternochondrial region, and post-concussion syndrome. His anxiety disorder, segmental dysfunction of thoracic region, and segmental dysfunction of the cervical region were determined not to be unfitting conditions. However, based on the line of duty determination that Petitioner's injuries were not incurred in the line of duty due to his misconduct, the PEB did not rate his unfitting conditions. Consequently, Petitioner was discharged on 30 October 2014 for disability, not in the line of duty. g. The Board determined that an injustice exists in Petitioner's case. Specifically, the Board concluded that Petitioner suffered from multiple neurological symptoms related to his TBI that was incurred in 2010. In their opinion, these symptoms likely contributed to his behavior that led to the incident that caused further injury. The fact the line of duty investigation failed to take into consideration Petitioner's history ofTBI, and the possible impact it had on Petitioner's behavior, was strong evidence to the Board that an injustice occurred when the Marine Corps found his injuries were not incurred in the line ofduty. As a result, the Board concluded that it is appropriate to reopen and return Petitioner's PEB case for readjudication based on the Board's finding that his unfitting disability conditions were incurred in the line ofduty. CONCLUSION Upon review and consideration of all the evidence ofrecord, the Board finds the existence of an injustice warranting the following corrective action. RECOMMENDATION That Petitioner's naval record be corrected, where appropriate, to show that: Petitioner's disability conditions that were found to be unfitting by the PEB findings of26 March 2014 were incurred in the line of duty and ratable. Petitioner's PEB record is to be reopened for the purpose of assigning appropriate disability ratings to the previously identified unfitting conditions and adjudicating the disposition of his case in accordance with the assigned ratings. A copy of this Report of Proceedings will be filed in Petitioner's naval record. 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 ofthe Board's proceedings in the above entitled matter. 5. Pursuant to the delegation ofauthority set out in Section 6( e) of the revised Procedures of the 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 ofthe Secretary of the Navy. Executive Director