From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO Ref: (a) 10 U.S.C. § 1552 Encl: (1) Dir, SECNAV CORB ltr 1910 CORB: 002 of 31 May 19 (2) Petitioner’s comments to the advisory opinion of 6 Sep 19 1. This letter responds to Petitioner’s application for correction of his naval record under the reference. The Board for Correction of Naval Records (the Board) previously denied his requested relief on 25 October 2012 and 18 March 2016. On 9 April 2019, the United States Court of Federal Claims remanded Petitioner’s case and directed the Board to reopen the record to provide Petitioner the opportunity to submit additional information relevant to his claims and obtain additional pertinent information, including an advisory opinion, to issue a new decision. The Board reconsidered Petitioner’s case in accordance with the Court’s order and procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 12 September 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 with accompanying exhibits, relevant portions of Petitioner’s 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 regulation within the Department of the Navy. b. Petitioner entered active duty with the Navy in June 2006. In the fall of 2008, after experiencing heart palpitations and other symptoms, Petitioner was initially diagnosed with super ventricular tachycardia, which was later changed to a panic disorder diagnosis. As part of his panic disorder treatment, Petitioner underwent an evaluation on 14 November 2008 that generated a psychological profile that indicated he possessed a personality disorder. Based in part on his psychological profile, the Navy diagnosed Petitioner with a dependent personality disorder. This diagnosis resulted in a recommendation for administrative separation from the Commander, Navy Medicine East, on 30 March 2009. Petitioner was notified on 15 April 2009 of administrative separation processing for convenience of the government due to personality disorder. He was discharged on 12 May 2009 with an honorable characterization of service. There is no evidence Petitioner was formally counseled prior to his discharge regarding the duty deficiencies caused by his personality disorder. Petitioner’s enlistment documents show that his end of obligated active service (EOAS) was 21 June 2012. c. After his discharge, Petitioner was examined by the Department of Veterans Affairs (VA) as part of a Compensation and Pension examination. He was again diagnosed with panic disorder, but determined not to possess a personality disorder. Based on his panic disorder symptoms, the VA assigned Petitioner a disability rating of 50% effective the day after his release from active duty. Since his release from active duty, medical records show that Petitioner has consistently been diagnosed with panic disorder and not a personality disorder. d. Petitioner argues that his record requires correction to reflect his placement on the disability retirement list and removal of his administrative separation due to personality disorder. He raises the following arguments in support of relief: (1) The weight of the evidence establishes that the Navy incorrectly discharged Petitioner for a personality disorder instead of medically retiring him for panic disorder: (2) The Navy improperly discharging Petitioner for a personality disorder without separation counseling as required by Department of Defense (DoD) Instruction 1332.14: (3) Petitioner would have been found unfit for continued naval service for panic disorder by a medical evaluation board and the Physical Evaluation Board (PEB) had he been properly referred as required under DoD and Navy regulations. The resulting finding by the PEB would have resulted in Petitioner’s placement on the disability retirement list with at least a 50% disability rating. e. Enclosure (1) contains an advisory opinion (AO) regarding Petitioner’s request to be placed on the disability retirement list. The opinion concludes that the evidence does not support the relief requested based on the lack of evidence Petitioner suffered from a sufficient duty performance impairment to warrant his referral the PEB. It also concludes that, if a referral had occurred, Petitioner likely would have been found fit to continue naval service. Petitioner provided enclosure (2), with exhibits, in response to the AO. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting relief. First, the Board determined that the Navy failed to formally counsel Petitioner concerning his duty deficiencies after he was diagnosed with a personality disorder as required by DoD Instruction 1332.14. Accordingly, the Board concluded that Petitioner was improperly discharged from the Navy without evidence that his personality disorder caused a duty deficiency. Based on this finding, they felt his administrative separation should be voided with his reinstatement to active duty with an effective date of 13 May 2009. The Board took into consideration that Petitioner’s change in life circumstances since his discharge in 2009 may not be conducive to resumption of Navy active-duty status in 2019. Therefore, they determined his return to active duty should be conditioned upon on his desire to return to the Navy. Should Petitioner choose not to return to active duty, the Board concluded that service credit from his wrongful discharge date until the date the Board’s recommendation is approved by the Executive Director of this Board suffices to redress the injustice created by his improper 2009 discharge. Further, the Board concluded that Petitioner would have been reenlisted at his EAOS for an appropriate number of years to allow him to return to active duty as of the date of this decision. Second, the Board concluded that the preponderance of the evidence does not support a finding that Petitioner was unfit for continued naval service requiring his placement on the disability retirement list with a 50% disability rating for panic disorder. In making this finding, the Board substantially concurred with enclosure (1). Specifically, the Board found insufficient evidence that Petitioner was unable to perform the duties of his office, grade, rank or rating due to his panic disorder or any other disability condition at the time of his discharge from the Navy. The Board relied on Petitioner’s excellent performance, documented in his performance evaluation ending on 10 May 2009, two days prior to his discharge from the Navy, as strong evidence that he could perform the duties expected of an E5 despite the existence of qualifying disability conditions. Even though Petitioner was assigned duties outside of his rating, his assigned duties included those commonly performed by all Navy personnel, such as watch standing, cleaning, and maintenance. In performing these duties, Petitioner was described as a proven Sailor who was “highly resourceful and knowledgeable” with a great work ethic. He earned a 3.43 trait average with above standard marks in “quality of work” and “teamwork” with no marks below “meets standards.” Petitioner was also recommended for early promotion, retention, and future assignment to instructor duty or special programs based on two months of performance leading up to his discharge from the Navy. In the Board’s opinion, this was strong evidence that supports finding that Petitioner was fit for continued active service and erroneously discharged for personality disorder since it is indicative that he was a superior performer at the time of his discharge with continued potential for naval service beyond his temporarily assigned duties. In their opinion, had he been properly counselled based on his personality disorder diagnosis, there would have been no basis for initiating his administrative separation due to duty performance deficiencies. Additionally, while the Board considered the VA disability rating assigned to Petitioner after his release from active duty, the Board concluded it was not conclusive evidence regarding the issue of fitness for continued naval service 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. As a result, the Board determined Petitioner’s documented performance leading to his release from active duty was more probative of his fitness for continued naval service than his assigned VA ratings. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by voiding his administrative separation for convenience of the government due to personality disorder and reinstating him to active duty effective 13 May 2009 and reenlisting him effective 21 June 2012 to allow him to serve until the date of this letter. Additionally, Petitioner’s record shall be changed, conditioned on his desire to return to active duty, to reflect he reenlisted from one day after the date of this letter. Should Petitioner not desire to return to active duty, he will not be reenlisted effective the date of this letter and only receive service credit from 13 May 2009 until the date of this letter. No other relief is warranted. 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 Regulations, 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 the reference, has been approved by the Board on behalf of the Secretary of the Navy.