DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9269-18 Ref: Signature Date Dear This letter is in reference to your 24 October 2018 reconsideration request. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved. Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. A three-member panel of the Board, sitting in executive session, considered your application on 16 March 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. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Navy and began a period of active-duty service on 9 November 2004. In January 2011, you received nonjudicial punishment (NJP) for false official statement and failure to obey a lawful order or regulation. Following your NJP, you lost your Navy Enlisted Classification (NEC) due to having demonstrated unreliability and lack of integrity as evidenced by your NJP. You served honorably until your discharge on 30 November 2011, when you were released from active duty and transferred to the Navy Reserve. You received an honorable characterization of service and a reentry (RE) code of RE-R1 upon your discharge. You request placement on the Permanent Disability Retired List (PDRL) with an 80% rating, effective 30 November 2011. You also seek a medical disqualification from Nuclear Field Duty effective 28 June 2010, contending that narcolepsy impacted your performance of duty, which resulted in a loss of your NEC. In the alternative, you request a formal hearing before the Physical Evaluation Board (PEB). Your current application hinges in part on the prior decision by the Board as issued in conjunction with the review of NR20150008042. The prior decision determined that the Navy failed to properly diagnose your narcolepsy condition that may have been unfitting for continued service. At that time, the Board concluded that you should have been referred to a medical board and the PEB for an unfitting determination. In August 2017, as a result of the NR20150008042 decision, an informal PEB convened and found you FIT for duty and concluded that the lack of presentation for continued symptoms was more likely than not due to a positive response to CPAP therapy for obstructive sleep apnea. You subsequently requested a formal hearing. In February 2018, you were denied a formal hearing. You contend that the PEB erred by not enrolling you into the Integrated Disability Evaluation System or the Legacy Disability Evaluation System. You also assert that there was error and injustice in the informal PEB review because your case should have been reviewed as if you had a narcolepsy diagnosis, you were not assigned a PEB Liaison Officer, no Medical Evaluation Board was conducted, and the decision was made based on information from another member’s service record. As part of the Board’s review, the Counsel of Review Boards reviewed your request and issued an AO on 4 February 2020. The AO noted your contentions but found that that the evidence does not support your request. The AO was provided to you, and you were given 30 days in which to submit a response. You responded to the AO on 12 March 2020. You claim that the AO contains factual inaccuracies, and you reasserted your request for placement on the PDRL for narcolepsy. You also seek consideration of the review of your NEC for non-medical reasons, and the correction of the informal PEB’s decision in light of the consideration of another Service member’s information. You also assert that you should receive liberal consideration as envisioned by the Kurta memorandum. You again claim that your performance while on active duty was impacted by all of the symptoms of narcolepsy, and that you should have an effective diagnosis dated 1 January 2010. The Board carefully considered your request, your contentions and submissions, its previous decision, the AO, and your rebuttal to the AO. The Board noted that you served satisfactorily after your NJP, despite the loss of your NEC, and completed your active-duty service with an honorable characterization. The Board noted that referral to a PEB, as previously directed by the Board to correct an error and injustice to your record, did not necessitate a finding of a compensable condition or disability that merits an automatic entitlement to retirement or disability separation benefits. The Board found that the referral to the informal PEB addressed the relief granted under NR20150008042, and noted that the Board’s previous decision did not supplant itself as a medical authority that diagnosed you with an unfitting condition of narcolepsy. Instead, the Board’s previous decision directed that the PEB “should review Petitioner’s medical record, . . . to determine whether he would have been unfit for continued naval service prior to his discharge. If he was unfit, the PEB should issue an appropriate disability rating consistent with regulations.” Regarding your current request, the Board concluded that, based on the 2017 PEB and in consideration of the AO, you were afforded the relief required by its previous (NR20150008042) decision, and that your record does not merit corrective action. The Board also found that your NEC was properly removed following your NJP, and noted that neither your misconduct as evidenced by the NJP nor any in-service medical condition initiated separation proceedings. The Board noted that you claim you are entitled to liberal consideration with respect to a change to your discharge because narcolepsy is a mental health conditions. Your request was fully and carefully considered by the Board in light of the Secretary of Defense’s Memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post-Traumatic Stress Disorder,” of 3 September 2014, and the “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment” memorandum of 25 August 2017. The Board considered, however, that you received an honorable characterization of service. The Board found that liberal consideration as envisioned by the current guidance does not directly apply to your particular circumstances because you received an honorable characterization of service upon completion of your service obligation and successfully affiliated with the Reserves, where you against honorably completed your service obligation. Nonetheless, the Board concluded that, even in light of your contention that you should be granted liberal consideration, your discharge as issued is appropriate and your record does not merit corrective action. It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon the 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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, Enclosure: Advisory Opinion of 4 Feb 20