Dear   
 
This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your case on its merits.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 25 July 2019.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and 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 Director CORB letter 1910 CORB: 002 of 19 June 2019 and your response to the opinion. 
 
A review of your record shows that you entered active duty with the Navy in October 1996.  After suffering loss of consciousness episodes, a medical board issued you with a “likely” partial complex epilepsy diagnosis and referred you to the Physical Evaluation Board (PEB).  The PEB terminated your case based on the incomplete diagnosis and another medical board referred you to the PEB on 10 November 2003 with a partial complex epilepsy diagnosis.  The PEB found you unfit for continued naval service on 12 January 2004 and issued you a 40% disability rating.  You were placed on the Temporary Disability Retirement List (TDRL) on 29 April 2004 pursuant to the PEB findings.  After undergoing a 2005 TDRL periodic examination and being retained on the TDRL by the PEB, you underwent another periodic examination on 22 March 2007 that revealed you only suffered two minor episodes of aura in the past two years with no seizures.  Based on this examination report, the PEB found you unfit for continued naval service for your partial complex epilepsy but lowered your disability rating to 20%.  You requested for formal hearing after disagreeing with the PEB findings.  On 21 June 2007, the PEB found you fit for active duty after your medical provider testified your condition had likely stabilized and was under control.  He also opined the most recent episode most likely was not a seizure but a fainting episode.  You were eventually returned to back to Reserve duty based on the PEB findings and continue to serve without incident. 
 
The Board carefully considered your arguments that you deserve service credit for your time on the TDRL.  You assert that you were improperly found unfit by the PEB in 2004 and denied the opportunity to earn service credit while assigned to the TDRL.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinion contained in Director CORB letter 1910 CORB: 002 of 19 June 2019.  Specifically, the Board found that sufficient medical evidence exists to support the decision of the PEB to find you unfit in 2004.  As pointed out in the advisory opinion, seizure disorders are normally determined to be unfitting.  The Board concluded this was because seizure disorder symptoms can be unpredictable and debilitating, therefore, are not generally compatible with military service due to the operational requirements associated with military duties.  The fact your unfitting condition later improved through neuroleptics and became sufficiently controlled to allow you to return to military service over three years after your placement on the TDRL did not convince the Board an error was made by the PEB in finding you unfit for continued naval service in 2004.  The Board found no reason why the PEB would find you fit for active duty in 2004 based on the instability of your unfitting condition at the time.  The Board then considered whether an injustice exists in your record based on your placement on the TDRL and concluded none exists.  The Board found that you were issued retirement pay and provided other retirement benefits during your time on the TDRL.  So despite the fact you were not provided the opportunity to continue to earn service credit through service, they determined you were properly compensated during your time on the TDRL to alleviate any injustice that may have existed.  Additionally, the Board also weighed the fact you did not perform any military duties to merit service credit during your time on the TDRL as additional evidence of the lack of any injustice in your case.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record. 
  
It is regretted that the circumstances of your case are such that favorable action cannot be taken.  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, 
8/5/2019
Executive Director