DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 8938-18 
Ref: Signature Date 

From: Chairman, Board for Correction of Naval Records 
To: Secretary of the Navy 

Subj: REVIEW OF NAVAL RECORD ICO 
Ref: (a) Title 10 U.S.C. 1552 

Encl: (1) DD Form 149 w/attachments 
      (2) Subject’s naval record 

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 reinstate her to the Temporary Disability Retirement List (TDRL) to allow her to respond to the Physical Evaluation Board (PEB) findings of 28 June 2018. 

2. The Board, consisting of , reviewed Petitioner’s 
allegations of error and injustice on 21 February 2019 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 of the enclosures, relevant 
portions of naval records, and applicable statutes, regulations and policies. 

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 of the Navy. 

b. Petitioner entered active duty with the Navy in December 2011 and served until her 
placement on the TDRL on 27 November 2016 with a 50% disability rating due to bilateral pes 
planus. After undergoing a periodic TDRL examination on 30 May 2018, the PEB found 
Petitioner unfit for continued naval service but lowered her disability rating to 10%. Petitioner 
was notified by letter dated 2 July 2018 which was delivered to her on 17 July 2018. According 
to the letter, Petitioner had 15 days from receipt of the letter to respond to the findings of the 
PEB. 

c. On 31 July 2018, Petitioner was provided access to an AMRDEC Safe file by her assigned 
PEB attorney that contained a formal PEB request. Petitioner was under the assumption her 
attorney had responded to the 2 July 2018 PEB letter with formal PEB request contained in the 
AMRDEC Safe file. However, the PEB finalized Petitioner’s case on 13 August 2018 with no 
evidence that the 31 July 2018 request was forwarded by Petitioner’s PEB attorney. 
Accordingly, Petitioner was discharged from the Navy with severance pay on 15 August 2018 
pursuant to the PEB findings in her case. 

d. The Board concluded there was insufficient evidence of PEB error in the case since they 
could not ascertain whether Petitioner’s PEB attorney submitted the response to the PEB 
findings in a timely manner. Presumption of regularity dictated that the PEB acted appropriately 
based on Petitioner’s presumed acceptance of the PEB findings by failing to respond to the 2 
July 2018 notification letter within 15 days. However, the Board found the existence of injustice 
in Petitioner’s case. The Board found Petitioner’s reliance on her Department of Navy assigned 
PEB attorney to submit a timely response to the PEB finding reasonable based on her knowledge 
of the 31 July 2018 AMRDEC Safe file containing a request for a formal PEB hearing. In the 
Board’s opinion, the failure to respond to the PEB findings was due to no apparent fault of 
Petitioner’s and an injustice would exist in her record without her reinstatement to the TDRL so 
she is afforded the opportunity to contest the PEB findings. The Board concluded that Petitioner 
should be reinstated to the TDRL in order for her to be re-notified of the 28 June 2018 PEB 
findings and to allow her to exercise her due process rights allowed under the disability 
regulations. 

CONCLUSION 

Upon review and consideration of all the evidence of record, 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 was not discharged from the Navy on 15 August 2018 and remained on the TDRL. 
After Petitioner is reinstated to the TDRL, the PEB shall notify Petitioner a second time of their 
28 June 2018 findings in her case and allow her 15 days from receipt of the letter to respond to 
the findings. 

A copy of this Report of Proceedings will be filed in Petitioner’s naval record. 

4. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the 
Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)) and 
having assured compliance with its provisions, 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 of the 
Board’s proceedings in the above entitled matter. It is hereby announced that the foregoing 
corrective action, taken under the authority of reference (a), has been approved by the Board on 
behalf of the Secretary of the Navy. 

2/25/2019 


Executive Director