DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 1228-19 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 w/attachments Docket No: 1228-19 6 Jun 19 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 find that his Physical Evaluation Board (PEB) determined unfitting conditions of Left Lower Extremity Paralysis, Right Lower Extremity Paralysis, and T12 Burst Fracture with Epidural Hemotoma be determined to be incurred in the line of duty and he be placed on the Permanent Disability Retirement List (PDRL). 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 30 May 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 November 2013. On 19 June 2016, Petitioner was injured after falling from a balcony in his attempt to escape from Italian police in . He suffered a T12 burst fracture with epidural hematoma leading to bilateral lower extremity paralysis. Petitioner was determined to have a .25 blood alcohol content. c. The initial JAGMAN investigation recommended Petitioner’s injuries be determined in the line of duty and not due to his misconduct. This recommendation was based on Petitioner’s assertions that he jumped to escape the police due his fear of the police and not due to impair judgment caused by his high level of intoxication. Commanding Officer, USS (DDG87) disagreed with the recommendation and found that Petitioner’s injuries were not incurred in the line of duty due to his misconduct. On 26 December 2016, Commander, Carrier Strike L Group TEN concurred with the recommendation of the JAGMAN investigating officer and concluded Petitioner’s injuries were incurred in the line of duty not due to his misconduct. d. While his line of duty status was being determined, Petitioner was also being processed through the Disability Evaluation System. Upon consideration, the PEB medical officer drafted a memorandum opining that Petitioner’s injuries were not incurred in the line of duty based on a finding that his alcohol intoxication was the proximate cause of his decision to jump from the balcony. This memorandum was negatively endorsed by the PEB legal advisor who argued there was not clear and convincing evidence that Petitioner’s alcohol intoxication led him to jump from the balcony. Secretary of the Navy, Council of Review Boards (CORB) legal advisor reached a different conclusion based on his review of the evidence. He believed that there was clear and convincing evidence that Petitioner’s alcohol intoxication was the proximate cause of Petitioner’s actions and recommended to Director CORB that Petitioner’s injuries be found not in the line of duty. Director CORB agreed with the recommendation and determined Petitioner was not in the line of duty when he incurred his injuries. Based on Director CORB’s finding, the PEB found Petitioner unfit for Left Lower Extremity Paralysis, Right Lower Extremity Paralysis, and T12 Burst Fracture with Epidural Hemotoma but also ruled he was ineligible for disability benefits. Petitioner was discharged on 30 December 2017 due to his disability conditions consistent with the PEB findings in his case. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial relief. Specifically, the Board determined that Petitioner’s injuries were disproportionate to the misconduct he committed to warrant a change in his record to allow him to receive military disability benefits. The Board concluded Director CORB and the PEB did not commit an error by finding Petitioner was not in the line of duty due to his misconduct when he incurred his unfitting disability conditions. However, they unanimously concluded that an injustice exists in Petitioner’s PEB record despite finding that no error was made. In their opinion, the severity of Petitioner’s disability conditions, when compared against the misconduct he committed, merits a change to his PEB record so that it reflects his disability conditions were incurred in the line of duty not due to his misconduct. The Board found insufficient evidence exists to determine whether Petitioner should be placed on the PDRL for his unfitting conditions and concluded it was appropriate to have the PEB reopen his case, in light of the Board’s findings, to make an informed adjudication based on disability regulations. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by changing the PEB findings in Petitioner’s case to reflect his unfitting disability conditions were not the result of intentional misconduct or willful neglect. Petitioner’s PEB record will be reopened and processed for assignment of disability ratings for each unfitting condition to determine an appropriate adjudication of disability benefits in his case. 4. It is certified that 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. The foregoing action of the Board is submitted for your review and action.