DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 3027-19 Ref: Signature Date Dear : This letter responds to your application for correction of your naval record under Title 10, United States Code, Section 1552. The Board for Correction of Naval Records (the Board) denied your requested relief on 22 February 2016. On 12 March 2019, the United States Court of Federal Claims remanded your case (Case No. 18-1746C)and directed the Board to: (1) address the issues raised in your complaint, including allegations that the Board (i) misconstrued the 2009–10 performance evaluation it relied upon in its decision; (ii) overlooked or ignored evidence that you were on limited duty; and (iii) rejected your argument about non-referral to the Navy Disability Evaluation System without explaining why that argument lacked merit; (2) address any other issues you submit in writing to the Board, and consider any evidence or arguments in in your submission; and (3) determine and explain whether you are entitled to any relief including correction of your records and awarding retirement pay, based upon any errors or injustices found. The Board reconsidered your case in accordance with the court’s order and procedures that conform to Lipsman v. Secretary of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful consideration of the entire record, the Board found the evidence did not establish probable material error or injustice. Thus, your application is denied. A three-member panel, sitting in executive session, considered your application on 20 June 2019, and the Board will provide the names and votes of the panel members upon request. The Board reviewed your allegations of error and injustice under applicable regulations and procedures. It considered your application, including all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies. The Board also considered the enclosed 1 May 2019 and 6 May 2019 advisory opinions (AOs) furnished by the Council of Review Boards (CORB), as well as your response to those opinions. You entered active duty with the Navy on 8 May 2006 and served as a Navy corpsman. You deployed to in 2007, where you reported experiencing multiple traumatic events. You deployed to in 2009, where you again experienced multiple traumatic events, including an improvised explosive device (IED) explosion striking your vehicle. Because of the symptoms you experienced from the IED explosion, you were diagnosed with traumatic brain injury (TBI) and referred for neurological examination. On 2 April 2010, you were diagnosed with post-concussive syndrome and recommended for mental health counseling, neuropsychological testing, and cognitive rehabilitation. In June 2010, you transferred from the ( ), to a naval hospital and received a positive performance evaluation for the period from 16 June 2009 through 15 June 2010. During that period, you were rated as the top performing corpsman out of your peer group of 20. You were placed on temporary limited duty effective 7 July 2010 with a proposed end date of 7 January 2011. On 22 July 2010, you were diagnosed with mild cognitive disorder and mild post-traumatic stress disorder (PTSD). Because your end of obligated active service was 8 October 2010 and you chose not to reenlist, the Navy processed you for discharge. You underwent a separation physical on 28 September 2010 that cleared you for discharge, noting that you were still being evaluated for concussion symptoms and treated for PTSD. On 8 October 2010, you were discharged and issued an RE-1 reenlistment code, meaning the Navy considered you eligible to reenlist. Your last evaluation before separation recommended you for early promotion with positive performance comments. Upon your discharge, the Department of Veterans Affairs (VA) rated you for several service-connected disability conditions, including TBI (40%) and employment as an Emergency Room Technician at in November 2010 and later as an Emergency Room Registered Nurse in June 2017 while earning your Bachelor of Science Degree from . The Board carefully considered your arguments that the Navy violated Department of Defense (DoD) Instruction 1332.38 by not medically retiring you in 2010. You argue that the Navy would have found you unfit for continued naval service due to TBI and PTSD had you been processed through the Disability Evaluation System (DES), and would have issued you a combined rating of at least 40%, resulting in your placement on the disability retirement list. The Board disagreed with your rationale for relief. In making its findings, the Board substantially concurred with the CORB AOs. Specifically, the Board found insufficient evidence to support a finding that you were unfit for continued naval service because of TBI or PTSD on or before 8 October 2010, your date of discharge from the Navy. First, the Board found that the Navy did not violate DoD Instruction 1332.38 by not referring you to the DES. As you quoted in your brief to this Board, that instruction requires Servicemembers to be referred to the DES “as soon as the probability that they will be unable to return to full duty is ascertained and optimal medical treatment benefits have been attained.” After reviewing the evidence, however, the Board concluded that you never reached that threshold for referral to the DES. Despite suffering from TBI and PTSD symptoms that required treatment and and mental health counseling, you still performed at the highest levels while assigned to . Although you argue that the 10 June 2010 performance evaluation only encompasses your operational duty and should not be considered to determine whether you were unfit for continued naval service, that evaluation includes a period during which you were already diagnosed with TBI and PTSD symptoms and working in a naval hospital rather than in an operational capacity. This was important to the Board because your performance record is a key indicator of whether you are unfit for continued naval service. SECNAVINST 1850.4E provides that to find a Servicemember unfit for continued naval service, “it must be established that the medical disease or condition underlying the diagnosis actually interferes significantly with the member’s ability to carry out the duties of his or her office, grade, rank, or rating.” Evidence that you professionally performed at the highest levels shows that your TBI and PTSD were not significantly interfering with your ability to carry out the duties of your office, grade, rank, or rating. SECNAVINST 1850.4E directs that findings of unfitness must be made on objective evidence considering the requirements and duties a member may reasonably be expected to perform in his office, grade, rank, or rating. The instruction further provides that inability to perform the duties of his or her office, grade, rank, or rating in every geographical location and under every conceivable circumstance will not be the sole basis for a finding of unfitness. Thus, although you filled a clerical role at the naval hospital, this assignment was not dispositive on the issue of unfitness. Under the Hospital Corpsman Basic job description in Navy Credentialing Opportunities Online, corpsmen “perform duties as assistants in the prevention and treatment of disease and injury and assist health care professionals in providing medical care to Navy and Marine Corps personnel of the operational forces, shore activities and other authorized beneficiaries … [they] function as clinical or specialty technicians, administrative personnel and health care providers at treatment facilities.” Because the Navy assigns corpsmen to naval hospitals to perform clerical and administrative duties, including duties similar to the ones you performed while on limited duty, your assignment to a non-operational role does not show you were unfit for continued naval service. The Board analyzed your performance before and after you were placed on limited duty to determine whether your TBI or PTSD made it improbable that you would return to full duty. As part of its analysis, the Board considered the temporary nature of your limited duty status, which was scheduled to expire in January 2011. The fact that your medical providers only temporarily placed you on limited duty and did not refer you to the Physical Evaluation Board shows that they did not consider your conditions to be permanently limiting, and with continued treatment, may have returned you to full duty status, including operational duty. And, you continued to perform highly while on limited duty, as evidenced by your 8 October 2010 performance evaluation. Because of your consistently high performance, the temporary nature of you limited duty, and the lack of evidence that your medical providers considered your condition to be permanent or to render you unfit for continued naval service, the Board concluded there was insufficient evidence to find that the Navy violated DoD Instruction 1332.38 by not referring you to the DES. The Board also considered whether an error or injustice exists in your record based on the Navy’s action to discharge you instead of placing you on the disability retirement list. Chapter 15-20 of the Manual of the Medical Department requires separation examinations and evaluations for active-duty members, explaining that comprehensive evaluations are conducted for the purposes of ensuring that Service members have not developed any medical conditions while in receipt of base pay that might constitute a disability that should be processed by the Physical Evaluation Board (PEB) and to ensure Servicemembers are physically qualified for recall to additional periods of active duty. Thus, the standards for being physically qualified to separate are the same as those being qualified to continue active duty Service . . . . You underwent a separation physical and were medically cleared for separation. As discussed above, your temporary limited duty and non-operational role at the naval hospital do not establish that you were unfit for continued naval service. The Navy also assigned you a reenlistment code of RE-1, which further shows that it considered you fit for continued service. Moreover, based on your 8 October 2010 performance evaluation, which recommended you for early promotion due to superior performance, you were successfully performing the duties of your office, grade, rank, or rating up to your date of discharge. The Board considered the arguments raised in your rebuttal to the AOs that service regulations prohibit reporting of your medical conditions or resulting limitations in your performance evaluations. Even so, your exemplary performance evaluations show that you were more than capable of performing the duties of your office, grade, rank, or rating despite the symptoms you were experiencing or the occupational impairments they created. The Board also considered the evidence of your post-discharge employment as an Emergency Room Technician starting in November 2010 and later as a Registered Nurse. In your rebuttal, you argue that the author of the advisory opinion did not attempt to identify the nature of your duties or your performance of your duties. The Board agreed that it lacked specific information regarding your performance, but your ability to secure employment in an Emergency Room and become a Registered Nurse reinforces the evidence in your performance evaluation that, at the time of your discharge, your TBI and PTSD did not significantly interfere with your ability to carry out your professional duties. Because you were medically cleared for discharge, assigned a reenlistment code of RE-1, continued your superior professional performance up to the date of discharge, and were able to secure an emergency room job shortly thereafter, the Board did not find sufficient evidence to show you had a disability condition that “should be processed by the Physical Evaluation Board.” Thus, the Navy properly discharged you without placing you on the disability retirement list, and no error or injustice exists to warrant a change to your record. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel would not materially add to their understanding of the issues involved. The Board therefore determined that a personal appearance was unnecessary and considered your case based on the evidence of record. The Board regrets that the circumstances of your case are such that favorable action cannot be taken at this time. You are entitled to have the Board reconsider its decision upon the submission of new matters. New matters are those not previously presented to or considered by the Board. 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 show the existence of probable material error or injustice. Sincerely, 7/18/2019