From:   Chairman, Board for Correction of Naval Records 
To:       Secretary of the Navy 
 
Subj:    REVIEW OF NAVAL RECORD ICO   
 
 
Ref:     (a) Title 10 U.S.C. 1552 
 
Encl:   (1) DD Form 149 
 (2) Director CORB letter 1910 CORB: 001 of 15 April 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 place him on the disability retirement list.   
                                              
2.  The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 2 July 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 July 2004 and suffered a right ankle injury during basic training.  As a result of this injury, Petitioner was eventually placed on limited duty and underwent right ankle surgery in February 2006.  After his pain symptoms continued, he underwent a second ankle procedure in August 2006.  Despite these attempts to correct his disability condition, Petitioner continued to be hampered by his ankle pain symptoms resulting in an administrative separation recommendation for condition not a disability.  Based on the medical recommendation, Petitioner was discharged on 8 June 2007 with an Honorable characterization of service. 
 
     c.  Post-discharge, the Department of Veterans Affairs (VA) rated Petitioner’s right ankle condition at 10% and also assigned him disability ratings of 10% for each of his shoulders.  Petitioner filed a claim for reconsideration with the VA that resulted in the continuation of his 10% rating for his ankle as of 2018.   
 
     d.  In correspondence attached at enclosure (2), the office having cognizance over Petitioner’s request to be placed on the disability retirement list determined that the evidence supports partial relief.  The opinion states that the evidence supports a finding that Petitioner was, more likely than not, unfit for continued naval service at the time of his discharge from the Marine Corps due to his right ankle pain symptoms.  Based on the VA assigned rating of 10%, the opinion recommends discharging Petitioner for his ankle disability condition with a 10% rating.  However, the opinion determined that insufficient evidence exists to support a similar finding for Petitioner’s bilateral shoulder condition.  Based on medical evidence that these conditions were mild and did not pose an occupational impairment, the opinion recommended no relief with regard to his shoulders.   
 
     e.  Petitioner provided rebuttal evidence restating his previous arguments and that the VA erroneously rated Petitioner’s ankle condition using a wrong disability code.  He further argues that the advisory opinion failed to address the VA’s error.   
                                  
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting partial relief.  In this regard, the Board concurred with the Advisory Opinions at enclosure (2).  Specifically, the Board determined that the preponderance of the evidence supports a finding that Petitioner was unfit for continued naval service at the time of his discharge due to his right ankle condition.  Consistent with the VA rating assigned to his ankle, the Board concluded a 10% rating was the appropriate rating for his unfitting condition.  The Board relied on the medical evidence that showed Petitioner suffered from continuous pain symptoms related to his right ankle that prevented his ability to perform the duties of his office, grade, rank or rating.  Supporting this finding was evidence that Petitioner was medically recommended for administrative separation due to his ankle condition.  In contrast, the Board found no similar supporting medical evidence of a military occupational impairment for Petitioner’s bilateral shoulder condition.  Despite receiving treatment for his shoulders, Petitioner was never considered for referral to the Disability Evaluation System or recommended administrative separation for these conditions by his medical providers.  This led the Board to conclude insufficient evidence exists to find he was unable to perform the duties of his office, grade, rank or rating due to his bilateral shoulder condition.  Further, the Board was not convinced by the VA ratings assigned to his shoulder conditions since eligibility for compensation and pension disability ratings by the VA is tied to the establishment of service connection and is manifestation-based without a requirement that unfitness for military duty be demonstrated.  Finally, the Board determined that the arguments regarding the VA’s alleged error in assigning Petitioner a 10% rating under the wrong disability code was without merit.  Absent evidence the VA made an error, the Board concluded assigning Petitioner a 10% rating by relying on Petitioner’s Jun 2007 VA rating was consistent with the Integrated Disability Evaluation System rules that require the Physical Evaluation Board to adopt proposed VA ratings.  The Board also relied on the fact that the VA denied Petitioner’s request for reconsideration in their 2018 decision to continue his 10% rating for his ankle condition.   
 
Due to the finding that Petitioner should be assigned a disability rating of 10% for his unfitting right ankle condition, the Board concluded that he did not meet the 30% statutory rating 
threshold for placement on the disability retirement list and should be discharged for disability in lieu of condition not a disability. 
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by changing Petitioner’s narrative reason for separation to disability with appropriate changes to his separation code consistent with this change.  Petitioner will be issued a new DD Form 214 reflecting the changes to his record.      
 
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.      
7/6/2020