From:   Chairman, Board for Correction of Naval Records 
To:     Secretary of the Navy 
 
Subj:    REVIEW OF NAVAL RECORD   
 
 
Ref:    (a) Title 10 U.S.C. 1552 
 
Encl:   (1) DD Form 149 
        (2) Psychiatric Advisor CORB letter 1910 CORB: 002 of 4 June 2020 
        (3) Director CORB letter 1910 CORB: 001 of 17 June 2020 
 
1.  Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that Petitioner’s naval record be corrected to reinstate him to the disability retirement list with a disability rating of 30% or greater.   
                                              
2.  The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 20 August 2020, 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 the 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 Marine Corps in June 2003.  After being hospitalized and diagnosed with Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD) in 2006, he was referred to the Physical Evaluation Board (PEB) for his mental health conditions.  The PEB found Petitioner unfit for continued naval service for PTSD in December 2006 and assigned him a 30% disability rating.  Based on his PEB findings, he was transferred to the Temporary Disability Retirement List (TDRL) in January 2007. 
 
     c.  The Department of Veterans Affairs initially rated Petitioner’s PTSD condition at 100% upon his transfer to the TDRL.  His rating was subsequently reduced to 50% in 2008 before eventually being increased to 70% in 2016.  In the meantime, the PEB lowered Petitioner’s PTSD rating to 10% in August 2010 based on a periodic physical examination (PPE) and ordered discharged from the Marine Corps.  However, Petitioner was later continued on the TDRL with a 50% rating pursuant to a class action settlement.  On 27 February 2014, Petitioner underwent another PPE that formed the basis for the April 2014 PEB finding that his disability rating should be again lowered to 10%.  Petitioner was subsequently discharged with severance pay pursuant to his PEB findings. 
 
     d.  In correspondence attached at enclosures (2) and (3), the office having cognizance over Petitioner’s request to reinstated to the disability retirement list determined that the evidence supports his request.  The opinion states that the February 2014 PPE report supports a rating between 10% and 30% based on Petitioner’s documented symptoms.  By providing Petitioner the benefit of the doubt, he should be assigned the higher disability rating since his symptoms resemble the 30% rating.  The opinion further explains that, by instruction, VA ratings may not be used to assign PEB ratings if they are older than 18 months old.  Since Petitioner’s Dec 2008 rating of 50% was older than 18 months when he was adjudicated by the PEB in 2014, his February 2014 PPE report was properly relied upon by the PEB in making their adjudication. 
                                    
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief.  In this regard, the Board concurred with the Advisory Opinions at enclosures (2) and (3).  Specifically, the Board determined that the preponderance of the evidence supports find Petitioner was unfit for PTSD at 30% at the time of his discharge from the Marine Corps.  His February 2014 PPE report documents that Petitioner was not doing well and may have downplayed his symptoms in his misguided attempt to return to active duty status.  As a result, the Board agreed with the advisory opinions that his symptoms met the PTSD criteria for a 30% rating at the time of his discharge from the Marine Corps.  The Board noted that Petitioner’s VA rating for his PTSD was later increased to 70% in 2016 but concluded this evidence was too distant in time from his discharge from the Marine Corps to be reasonably relied upon in assigning him a disability rating for 2014.  After weighing the evidence, the Board concluded the February 2014 PPE was significantly closer in time to his discharge date and, therefore, more probative as to his mental health condition at the time. 
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by placing Petitioner on the Permanent Disability Retirement List for PTSD, VASRD 9411 at 30%, effective the date of his discharge from the Marine Corps.        
 
4.  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. 
 
5.  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 Regulation, Section 723.6(e)) and having assured compliance with its provisions, 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.