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 w/ attachments 
(2) Director CORB letter 1910 CORB: 001 of 24 April 2020 
(3) Petitioner’s response to advisory opinion dated 23 July 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 reviewed Petitioner’s allegations of error and injustice on 7 August 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, 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 originally entered active duty with the Marine Corps in May 2001 and served out his obligated active service in May 2005.  He reentered active duty in December 2006 and serviced without incident until developing symptoms consistent with Ulcerative Colitis in 2012. After undergoing two colonoscopies and being diagnosed with Ulcerative Colitis, he was referred to the Physical Evaluation Board (PEB) in April 2013 for his condition.  The PEB found him unfit for continued naval service and assigned him the proposed Department of Veterans Affairs (VA) rating of 30% in August 2013.  Petitioner was subsequently placed on the Temporary Disability Retirement List (TDRL) on 30 October 2013. 
 
     c.  Petitioner attended a TDRL Periodic Physical Examination (PPE) in May 2016.  The PPE reports documents that Petitioner was taken off medication for his Ulcerative Colitis condition in April 2014 and was experiencing minimal symptoms at the time.  Based on the PPE report, the PEB found Petitioner unfit for continued naval service due to his Ulcerative Colitis condition but lowered his disability rating to 10%.  Petitioner was removed from the TDRL and discharged with severance pay on 30 September 2016.  On 21 March 2017, the VA continued Petitioner’s Ulcerative Colitis rating of 30%.  Petitioner subsequently underwent another colonoscopy in August 2017 that documented he was still suffering from severe inflammation consistent with Ulcerative Colitis and directed he continue medication treatment.   
 
     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 does not support his request.  The opinion relies on the May 2016 PPE report which states that Petitioner was doing relatively well without medication for over two years.  However, in enclosure (3), Petitioner argues he was taken off his Ulcerative Colitis medication due to potential infections.  He had contracted Coci Meningitis and was still taking medication to treat that condition when he was removed from the TDRL.  The August 2017 colonoscopy documents that his Ulcerative Colitis condition still exists with severe inflammation.   
                                     
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting the following corrective action.  The Board determined that Petitioner’s unfitting condition was, more likely than not, not stable at the time of Petitioner’s removal from the TDRL based on the VA rating of 30% in March 2017 and his post-discharge colonoscopy results that document he was still suffering from severe inflammation due to his condition.  While the Board concluded the PEB acted on the evidence available at the time, based on the post-discharge medical evidence, they believe an injustice exists in Petitioner’s record that requires him to be placed back on the TDRL for a final TDRL PPE and adjudication by the PEB. 
 
RECOMMENDATION: 
 
That Petitioner’s naval record be corrected, where appropriate, to show that: 
 
Petitioner was not removed from the TDRL on 30 September 2016.  Petitioner will be ordered to attend a PPE in order to allow the PEB to make a final determination of his disability status in accordance with Title 10, U.S. Code, Section 1210.  All due process rights associated with the Disability Evaluation System will be afforded to the Petitioner as part of the Physical Evaluation Board review. 
 
4.  Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that 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.   The foregoing action of the Board is submitted for your review and action. 
 
          8/24/2020