Docket No.  11761-19
Ref:   Signature Date

From:  Chairman, Board for Correction of Naval Records 
To:    Secretary of the Navy 
 
Subj:  REVIEW OF NAVAL RECORD ICO FORMER MBR                 ,    USN 
 
Ref:   (a) Title 10 U.S.C. 1552 
 
Encl:  (1) DD Form 149 w/attachments 
 
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 place him on the disability retirement list or grant him service credit to retire with 20 years of service.         
                                              
2.  The Board, consisting of                       reviewed Petitioner’s allegations of error and injustice on 10 September 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 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 September 1989 and served without incident until he was referred to the Physical Evaluation Board (PEB) by a medical board in October 2007 for Atypical Depressive Disorder.  The PEB found him unfit for continued naval service on 10 December 2007 for his depressive disorder and assigned him a 30% disability rating with a recommendation to place him on the Temporary Disability Retirement List (TDRL).  At that point, Petitioner had slightly over 18 years of active duty service toward retirement and was denied a request to be placed on Permanent Limited Duty (PLD) status. 
 
     c.   Despite denying his request for PLD, Petitioner was maintained on active duty until 31 January 2009 during which he performed well enough to earn a Navy and Marine Corps Achievement Medal.  When Petitioner was transferred to the TDRL, he had 19 years, four months, and 21 days of active duty service. 
 
     d.   In December 2010, the PEB found Petitioner remained unfit for continued naval service for his condition but lowered his disability rating to 10% based on a periodic physical examination that documented his symptoms has lessened in severity.  After Petitioner accepted the PEB findings, he was discharged from the Navy on 4 January 2011 with severance pay. 
                                     
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief.  Specifically, the Board determined that the preponderance of the evidence supports granting Petitioner sufficient active duty service credit to allow him to qualify for transfer to the retired list with 20 years of active duty service.  In the Board’s opinion, Petitioner should have been granted PLD status in January 2009 since he was within approximately eight months of reaching retirement eligibility and performing extremely well despite his unfitting disability condition.  Since the Navy maintained Petitioner on active duty more than 12 months after his PEB findings and after denying his request to be placed on PLD, the Board concluded sufficient injustice exists to grant him relief.   
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by vacating Petitioner’s transfer to the TDRL, granting Petitioner sufficient active duty service credit to reach at least 20 years of active duty service, and retroactively placing him on the 20-year retirement list effective his first day he was eligible for transfer to the list. Petitioner will be issued a new DD Form 214 consistent with this change. 
 
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.  


9/15/2020

Deputy Director