Docket No: 3898-19 Ref: Signature Date Dear This letter is in reference to your reconsideration request dated 4 June 2019. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved. Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. A three-member panel of the Board for Correction of Naval Records (Board), sitting in executive session, considered your application on 9 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. 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 issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Navy and began a period of active duty on 21 October 1999. The early period of your enlistment was marked with a steady performance and growth. Your evaluation for the period of 16 July 2000 through 31 August 2000, notes that you received accolades from your customers and you were ranked as “Promotable” with a 3.00. Your subsequent evaluation for the period ending 2 April 2001, states that you were working hard to improve yourself professionally and militarily; you received a trait average of 3.33. Your application for correction claims that you began to struggle in the Navy following your 8 June 2001 transfer to . You assert that you were victimized by your command at . You also stated that the side effects of Accutane, which you began taking in August 2001, impacted your performance. You assert that you experienced a decline in performance because of the victimization and the side effects caused by Accutane. You also claim that the Department of the Navy failed by not informing you that Accutane was the subject of a Congressional hearing. On 15 November 2001, you received nonjudicial punishment (NJP) for two specifications of disrespectful language, using provoking words, and wrongfully communicating a threat by saying to a second class petty officer “I will kill you.” Your evaluation for the period from 16 June 2001 through 15 November 2011, reflects a trait average of 2.00. The evaluation for the period of 16 November 2001 through 28 February 2002, notes that you were participating in Anger Management and received a trait average of 2.50. Your final evaluation from 16 July 2003 through 31 October 2003, indicates that you were marked as “Promotable” and received a 3.17 trait average. You were discharged on 20 October 2003, after completion of your required active service and received an honorable characterization of service and a reentry (RE) code of RE-1. In your application for correction you ask that your rank be changed from E-3 to E-4, that your NEC designator be changed to “DK” with an effective date of 15 November 201, that you receive a service connected disability for feet and back injuries sustained in the Navy, and for correction to your DD Forms 2807-1 (Report of Medical History) and 2808 (Report of Medical Examinations). You contend that prescription Accutane caused serious side effects including irritability, aggression, personality change, and back pain. You also state that you were assaulted during your time at by a first class petty officer, and that you had no way of reporting the assault. You assert that the emotional stress you experienced at coupled with the side effects of Accutane caused major musculoskeletal problems and emotional issues that impacted your conduct, resulting in NJP, the reduction of rank from E-4 to E-3, and the loss of your Disbursing Clerk (DK) rating. You provide your previous petitions to the Board, information about Accutane, and medical records establishing that you took Accutane while in the military. You provide Veterans Affairs (VA) documentation from 5 November 2018 that opines that your chronic lower back pain, leg pain and foot pain are related to your military service. Finally, you note that the previous Board decision letter indicated that your DD Form 2807-1 and DD Form 2808 appear incomplete. The most recent Board decision pertaining to your request, Docket Number NR2018000, resulted in a denial. You ask for the names of the Board members from the panel that considered NR2018000. The names are provided to you by separate correspondence. The Board carefully reviewed your application for reconsideration, your previous submissions, the documentation you provided in support of your contentions, and your available service record. The Board noted your assertion that the prescription medication, Accutane, impacted your in-service conduct. The Board considered your claim that your decline in performance and negative interactions with other military personnel are enough to suggest that the side effects of Accutane caused your resultant misconduct. The Board considered that your evaluations reflect performance marks of 3.00, 3.33, 2.00, 2.50 and 3.17. Your evaluation of 2.00 reflects a drop in performance and covers the period of 16 June 2001 through 15 November 2001, which coincides with the timeframe in which you were first prescribed Accutane (August 2001). However, the Board noted that your evaluations reflect a steady improvement in the following two periods, with your final evaluation reflecting a 3.17, your second highest trait average during your enlistment. The Board concluded that your record indicates an improvement in your performance following the NJP, as evidenced by your final evaluation. The Board noted that the medical opinions of your current Primary Care Physician, both of the Department of Veterans Affairs (VA), are that your chronic lower back pain, leg pain, and foot pain are related to your military service. The Board found, however, that the evidence you provide does not establish a nexus between your in-service prescription of Accutane and your misconduct while in the Navy. The Board determined that you did not provide sufficient evidence establishing that Accutane was directly impactful on your conduct and thereby mitigated the NJP during which you were found guilty of disrespectful language, failure to obey a lawful order, using provoking words, and communicating a threat. The Board concluded that the NJP was properly executed, and the resultant punishment of loss of rank from E-4 to E-3 was appropriate. Furthermore, the Board noted that your command had the discretion and authority to seek removal of your NEC for behavior and conduct issues. Given that you were found guilty at NJP on 15 November 2001, the Board determined that your command had a sufficient basis for the removal of your NEC of “DK.” The Board noted that your evaluation for the period of 16 November 2001 to 28 February 2002, indicates that you received Anger Management Training, and that your following evaluation showed a marked improvement in performance. Accordingly, the Board concluded that the Navy appropriately responded to your behavior issues and provided you services which supported your performance of duty. The Board considered your contention that you should have been informed of the December 2002 Congressional Hearings regarding Accutane, but determined that you did not establish that the Navy failed in its duty to provide you adequate medical treatment and care when prescribing you Accutane in August 2001. With regard to your assertions that you should have received a service-connected disability for your feet and back before separating from the Navy, the Board considered that you completed your enlistment honorably and were assigned an RE-1. The Board found that your record does not establish that you had a condition or disability at the time of your military service that prevented you from performing the duties of your office, grade, rank or rating, and would thereby qualify you for a disability discharge and/or in-service disability determination. The Board relied on your performance improvement as evidenced by your final evaluation and your RE-1 when determining that you were fit for duty at the time of your discharge on 20 October 2003. The Board noted that a post-service determination by the VA of service-connected medical issues does not establish that you were unfit for duty in 2003 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. . The Board concluded that you failed to establish that you merit a disability discharge or retirement from the Navy. The Board considered your assertion that your DD Form 2807-1 and DD Form 2808 contain errors and omissions, that the forms were not completed properly, and that you did not receive proper evaluation and care for the pain in your feet and lower back. The Board noted that the previous panel considered your request for correction to these forms, and denied your request. The current Board concurred with the previous Board’s rationale and denial. Accordingly, the Board determined that corrective action which modifies the notes of Medical professionals at the time of your in-service evaluation is not warranted. It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon the 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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.