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 6 February 2020. 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 opinions contained in BCNR letter MLCS Docket No: 8604 of 25 February 2019, Senior Medical Advisor CORB letter 1910 CORB: 002 of 28 November 2019, and Director CORB letter 1910 CORB: 001 of 5 December 2019 in addition to your responses to the opinions. A review of your record shows that you entered active duty with the Navy in October 2001 and served as a member upon completion of your initial training pipeline. You suffered a number of injuries including back and foot injuries that required treatment commencing in 2003. In the meantime, you deployed to in 2004 and were exposed to multiple traumatic events while engaged in combat operations. Upon returning from , you underwent foot and eye surgery in 2005, followed by a second foot surgery in 2006, before deploying to the Once there, you suffered another leg injury. According to your statement, you sought out controlled narcotics to alleviate the pain associated with your injuries and allow you to rest. However, in October 2006, your command located used vials of the narcotics in your living space during an incident when you became incoherent. After you admitted to obtaining and using the narcotics, non-judicial punishment was imposed on you for your misconduct on 21 November 2006. This misconduct eventually led to your administrative separation for drug abuse on 1 June 2007. Prior to your discharge, you were diagnosed with an opioid dependence and adjustment disorder on 28 March 2007. Post-discharge, you obtained employment with a security contractor and worked in . In 2009, you suffered an anoxic brain injury due to a drug overdose that resulted in the loss of use in both lower extremities. The Department of Veterans Affairs (VA) has since rated you for a number of service connected disability conditions including opioid dependence and dementia due to anoxic brain injury, loss of use of both lower extremities, dysarthria, low back strain, left knee degenerative joint disease, and right knee ACL tear. You have also been granted a number of entitlements to special compensation by the VA. The Board carefully considered your arguments that you deserve to be placed on the Permanent Disability Retirement List (PDRL) with a 100% disability rating to include applicable benefits and back pay. You also requested the Board grant you Combat Related Special Compensation (CRSC) should the Board determine placement on the PDRL is appropriate. Unfortunately, the Board disagreed with your rationale for relief. In making their findings, the Board substantially concurred with the advisory opinion contained in Senior Medical Advisor CORB letter 1910 CORB: 002 of 28 November 2019 and Director CORB letter 1910 CORB: 001 of 5 December 2019. First, you argued that your in-service injuries rendered you medically unfit for continued naval service and required a referral to the Disability Evaluation System prior to the initiation of administrative separation proceedings. You contend that your low back strain, plantar fasciitis, partial ACL tear, and Post-Traumatic Stress Disorder symptoms were sufficient to merit your referral. SECNAVINST 1850.4E states that a service member may be removed from full military duty for up to 30 days of light duty for the purpose of evaluation or treatment of a medical condition. If the member is unable to return to full military duty at the end of 30 days of light duty, the member will be referred to a medical board for evaluation for placement on Temporary Limited Duty or referral to the Physical Evaluation Board (PEB). In examining your record, the Board was unable to find a period in which you were unable to return to full duty. Further, the Board noted that the determination of whether your medical conditions required placement on limited duty or a referral to the PEB is a medical provider decision. You were seen by a number of medical providers who all determined you were medically qualified to continue performance of your military duties. In addition, the Board examined your performance leading up to your deployment to the in 2006. From 16 March 2005 through 15 March 2006, you were described by your as an E-5 performing at an E-7 level. Your quality of work and personal job accomplishment were both rated as “Above Standards” for your paygrade and rating. You were rated at fleet standards or above in all performance traits earning a promotion recommendation of “must promote” that was higher than four of your peers. In light of your superior performance leading up to your deployment to the , whether you were masking the effects of your disability conditions or not, the Board concluded the preponderance of the evidence supports the Navy’s decision not to refer you to a medical board. Despite evidence you suffered a number of physical and mental health injuries that required multiple treatments including prescription of narcotics, the Board felt that the Navy had to rely on some objective evidence of occupational impairment in order to refer you to a medical board. In your case, as documented by your performance evaluations, the Board determined your occupational impairment was insufficient to support a referral. Second, you allege that your referral to the PEB would have resulted in an unfitting finding with an assignment of a disability rating of 100%. The Board found insufficient evidence to support such a finding prior to your deployment to the in 2006. SECNAVINST 1850.4E states in order to find a service member unfit for continued naval service, it must be established that the medical disease or condition underlying the diagnosis actually interferes significantly with the member’s ability to carry out the duties of his or her office, grade, rank or rating. As previously discussed, the Board was unable to find evidence that any of your disability conditions significantly interfered with your ability to carry out your duties. The Board relied on the performance evaluation ending in March 2006 to find that you were performing at or above fleet standards for your paygrade and rating up to that time despite your symptoms related to your disability conditions. The Board also considered whether your ACL injury, that occurred during your deployment to the in 2006, was unfitting but concluded the preponderance of the evidence did not support such a finding based on your post-discharge employment in as a security contractor. Despite your assertion that you were severely impaired by your PTSD and could not secure gainful employment, the Board felt your ability to physically qualify for employment as a security contractor and deploy to contradictory to your assertion that you were unfit for continued naval service at the time of your discharge. Further, the Board could not determine whether other intervening factors contributed to your drug overdose in 2009. Finally, the Board considered your VA ratings for your disability conditions but concluded they were not probative on the issue of fitness for duty since eligibility for compensation and pension disability ratings by the VA is tied to the establishment of service connection and is manifestation-based without a requirement that unfitness for military duty be demonstrated. Third, the Board considered whether your misconduct could be mitigated based on your PTSD diagnosis and an argument that an injustice exists. After applying liberal consideration to the facts of your case, the Board concluded no change is merited. The Board determined that your characterization of service and narrative reason for separation remains appropriate since the preponderance of the evidence supports a finding that you committed the misconduct that forms the basis for your administrative separation and you already received substantial mitigation from the Navy. The Board reached this conclusion based on your receipt of non-judicial punishment vice a referral to a court-martial and the assignment of a General under Honorable conditions characterization of service. In their opinion, the drug offenses committed by you met the criteria for referral to a Special or General court-martial due to the dangerous nature of the misconduct, the discredit to the naval service and disruption to good order and discipline it generated, and the number of times you committed these serious offenses. So, the fact you received punishment normally reserved for minor offenses led the Board to conclude you were already granted substantial mitigation based on your military record and disability conditions. In making their finding, the Board also considered that your conduct could have resulted in five years confinement for each specification of wrongful drug use or possession. Additionally, the fact your offenses qualified for a punitive discharge under the Uniform Code of Military Justice was further evidence that you received substantial mitigation from the Navy since you were assigned a General under Honorable conditions discharge. Therefore, after applying liberal consideration, the Board reached the conclusion that no further mitigation was necessary due to your disability conditions. Fourth, based on the Board’s determination that your administrative separation for misconduct was appropriate, the Board also determined you were not entitled to disability processing through the Disability Evaluation System. While the Board understands your arguments that your service connected disability conditions and treatment by Navy medical personnel contributed to your opioid addition, they did not feel this justified your misconduct. Nor did they find evidence of your current medical condition sufficiently persuasive to overlook your misconduct. SECNAVINST 1850.4E directs administrative separation proceeding for misconduct to supersede disability proceedings. Since the Board found you were appropriately processed and discharged for misconduct, they also concluded you were not eligible for a disability review despite the existence of disability conditions and symptoms. Fifth, based on the Board’s finding that you should not be placed in a retirement status, the Board concluded that you are not statutorily eligible for CRSC based on your discharge from the Navy. While the Board empathizes with your current medical condition and the circumstances that led to your post-discharge overdose, they felt compensation and treatment for your disability conditions fall outside the scope of the Department of Defense disability system and under the purview of the VA. 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.