DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 3804-19 Ref: Signature Date This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits. A three-member panel of the Board for Correction of Naval Records (Board), sitting in executive session, considered your application on 23 September 2019. The names and votes of the members of the panel will be furnished upon request. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies. You enlisted in the Navy and began a period of active duty on 31 January 2001. During your active duty service, you were diagnosed with Stage IV-B Hodgkin’s and non-Hodgkin’s lymphoma. On 21 March 2006, a Medical Board convened and it was determined you should be referred to a Physical Evaluation Board (PEB). On 27 March 2006, the PEB found you unfit for continued service with a 100% disability rating. On 30 May 2006, you were released from active duty and transferred to the Temporary Disability Retired List (TDRL). On 26 October 2007, the first TDRL examination was performed; the resultant opinion was that you should be transferred to the Permanent Disability Retired List (PDRL). From 2007 through 2011, you received ongoing and routine evaluations by the PEB. On 20 June 2011, the PEB medical personnel found you fit for duty and commented that you appeared “cured at this point, normal cardiac function, essentially normal lung function, working . . . feeling well.” You elected not to request a formal board. You attempted to join the Navy Reserves and were denied reenlistment. You were told by your recruiter that you were outside of the Navy’s weight standards and that the recruiter was unwilling to send you to MEPS. In your petition to the Board, you ask for a change in the PEB’s fitness determination from 2011, and request that you be placed on the PDRL due to stage IV-B Hodgkin and non-Hodgkin lymphoma and associated conditions. You also ask for all back pay and allowances associated with the back-dated physical disability retirement resultant with a placement on the PDRL. Alternatively, you ask to be processed through IDES to determine if your conditions warrant permanent disability retirement. The Board carefully reviewed your application took into consideration the brief and exhibits you submitted in support of your request. The Board noted that you are currently rated as 80% disabled by Veterans Affairs, for conditions which you state are consistent with those identified by the PEB’s examining physician. The Board also considered your argument that your current fitness determination and resultant discharge are inequitable because the policies and procedures under which you were discharged have changed materially. Finally, the Board noted your assertion that congestive heart failure and a left lung lobotomy were not taken into consideration with your determination, and the IDES process would have individually identified these conditions. The Board considered that the PEB found you fit for duty despite the recommendation of oncology/hematology, but noted that your health appeared to have stabilized. The Board considered your contention that you were so unwell that you were denied reenlistment, but noted that you appear to have been outside of the Navy’s weigh standards, which impacted your recruiter’s recommendation to send you to training. The Board relied on the PEB’s statement that you appeared “cured at this point, normal cardiac function, essentially normal lung function, working . . . feeling well” and determined that you did not provide sufficient evidence to warrant a change to the fitness for duty determination. In light of the PEB’s documented considerations, the Board did not find your argument persuasive that congestive heart failure and a left lung lobotomy combined with your other associated conditions from your in-service diagnoses should have resulted in a determination of unfitness. Accordingly, the Board found that the PEB’s determination should remain unchanged. The Board determined that a referral to the IDES process or a transfer to the PDRL with associated back pay and benefits is not appropriate. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its understanding of the issue(s) involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or considered by the Board. In this regard, 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 demonstrate the existence of probable material error or injustice. Sincerely, 12/2/2019