DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6989-18 Ref: Signature Date 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 application on its merits. A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 21 October 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, and the relevant Advisory Opinion (AO) of 9 September 2019. You enlisted in the Navy and served honorably until your retirement in March 2015. Prior to your retirement, you were found unfit for continued military duty due to a confirmed diagnosis of right leg weakness. In August 2012, you had surgery to biopsy a brain legion; the surgery left you with resultant weakness in your right leg, which continued to impact your performance of duty. Your evaluation for the period of 9 December 2011 through 21 February 2012, notes that you were unsuitable for sea duty due to your current medical condition and medications. Your evaluations from 2012 through 15 September 2014, reflect several medical waivers for your Physical Fitness Assessments, but also note your inspirational leadership, your positive impact, your seasoned professionalism, and that your performance at a level equivalent to a Master Chief Petty Officer. On 9 October 2014, a Physical Evaluation Board (PEB) reviewed your medical records and considered the residual disability that followed your 2012 craniotomy and open biopsy of a brain lesion. During its assessment, the PEB noted that on 5 September 2014, Veterans Affairs (VA) assigned you a 10% disability rating. The VA’s rating was made after assessing your central nervous system infection left frontal cerebral loculation secondary to viral meningitis (claimed as brain tumor malignant astrocytoma grades I and II, right leg weakness and viral meningitis). The PEB also noted that your right leg condition impacted your performance of duties to include running, climbing, and prolonged standing. The PEB found that your confirmed diagnosis of right leg weakness made you unfit to perform your duties, with a 10% disability rating. On 28 March 2015, after 22 years, 8 months, and 16 days of active duty service, you were retired from the Navy in the grade of Senior Chief (E-8) with a Narrative Reason for Separation of Disability, Permanent and a reentry (RE) code of RE-2. You request an increase to your disability rating from 10% to 100%, meritorious promotion to E-9 along with associated compensation for said promotion, and back pay from the date of your retirement. You provide information about your brain surgery in August 2012, followed by your transfer from to on 23 December 2013, with a report date of 14 January 2014. You indicate that you were found fit for duty on 1 April 2014, and received orders back to After six months, however, your command and a Medical Board determined you should return to While at home, you suffered two seizures and were transported to the emergency room, where you had a CT scan, X-rays, and EEGs. You state the emergency room doctor told you that scar tissue mass from your brain tumor removal was visible; you state that your treating neurologist agreed. You contend that the neurologist also indicated that had your right leg weakness been annotated as due to the removal of a tumor in the motor strip, then you would have received a 100% disability rating. You state that since retiring you have had multiple seizures and have been diagnosed with a second tumor. You further state that it has only been 2 years and 9 months since your retirement and your tumor is growing. You indicate that there is a great possibility of losing the use of your entire ride side of your body, which would leave you unable to work or care for yourself. You assert that the PEB did not receive the full story or your full medical history and you would like a chance to explain it. You provide the Board with Navy Medical Records, current VA records, and documentation from your civilian neurosurgeon. You also note that you were passed over four times for promotion to E-9/Master Chief Petty Officer. As part of the review process, the CORB reviewed your assertions and the available records, and issued an AO dated 9 September 2019. The AO found that the evidence does not support your request and noted that your 10% rating at the time of your PEB review was assigned due to unfitness related to right leg weakness. The AO also noted that post retirement, your diagnosis has shown that your brain lesion is a slow growing brain neoplasm with no significant change clinically. The AO was provided to you, and you were given 30 days in which to submit a response. When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration. The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including your contention that the PEB did not have complete information about your condition. The Board also considered your concerns about the possibility of the ongoing and future deterioration of your condition. The Board reviewed the information you provided, the entirety of the PEB case file, and the AO. The Board noted that the PEB had access to your Naval medical records as well as the VA determination. The Board also noted that your evaluations for the period between your brain surgery and your retirement indicate that you were a leader and contributor to your command, despite having physical limitations that impacted your mobility. The Board concurred with the findings of the AO and determined that the PEB’s disability rating of 10% was consistent with the information in your medical records, aligned with the VA’s September 2014 determination of a 10% rating, and was reflective of your limitations in the performance of your military duties. The Board noted that your rating of 10% by the PEB was appropriately reflective of your condition that impacted fitness for duty (right leg weakness) at the time of your retirement, rather than the actual pathology. Accordingly, the Board found that a change in your 10% disability rating to 100% is not appropriate, nor is back pay to the date of retirement warranted. The Board concluded that the PEB’s determination that your unfitness for duty was related to your right leg weakness, not brain lesions or tumors. Furthermore, the Board found that the PEB took into consideration your 2012 brain surgery as well as the subsequent impact that lesions or tumors may have had on your performance of duty. In consideration of the evidence in your record, the PEB’s considerations, and the findings of the AO, the Board determined that no change to your 10% rating is warranted. The Board considered your request for a meritorious promotion to E-9, and found that you did not provide sufficient evidence to support that your contention that you should be promoted due to error or injustice. The Board determined that your rank of E-8 at retirement was appropriate and does not require correction. 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.