DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 6080-19  
Ref: Signature Date 
 
From: Chairman, Board for Correction of Naval Records  
To:   Secretary of the Navy  

Ref: (a) Title 10 U.S.C. 1552 

Encl: (1) DD Form 149 

1.  Pursuant to the provisions of reference (a) Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to reinstate him to the Temporary Disability Retirement List (TDRL) in order to allow the Physical Evaluation Board issue a final adjudication in his case.  He also requested reinstatement of disability pay.  Petitioner previously petitioned the Board for Correction of Naval Records (Board) and was advised that his application had been disapproved.  His 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).   

2.  The Board, consisting of                                                                       , reviewed 
Petitioner's allegations of error and injustice on 17 October 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, 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 November 1999.  After suffering a right leg fracture playing soccer, he was referred to the Physical Evaluation Board in 2001 for his leg condition and found unfit for continued naval service on 15 November 2001.  Based on his assigned 30% rating for his condition, he was transferred to the TDRL on 31 January 2002.  Between June 2002 and February 2006, Petitioner issued orders to appear for a TDRL periodic examination and failed to appear. He provided evidence that he did not receive notifications to appear for his examinations and previously argued in his first application that he was unable to attend because he was undergoing treatment for his leg condition.  In any case, Petitioner was administratively removed from the TDRL after exceeding the five-year statutory period due to his failure to attend his periodic examinations.  He was eventually discharged from the Marine Corps. 

     c.  This Board denied Petitioner’s first request to be reinstated to the TDRL on 1 February 2016.  Despite the arguments raised in his current application that the Board failed to consider his reasons for failing to appear for his periodic examinations, the Board considered his arguments and determined they were not supported by the preponderance of the evidence. Specifically, Petitioner argued he was unable to attend his examinations due to treatment he was undergoing for his leg condition.  The Board did not find this argument persuasive nor his argument that he did not receive notice based on his statement that he communicated with Headquarters, U.S. Marine Corps about his missed examination.  Regardless, the Board concluded that an injustice exists in his record that requires partial relief.  Specifically, the Board determined Petitioner likely continues to suffer from the disability condition for which he was placed on the TDRL and to continue to deny him the opportunity to seek lifetime military disability benefits due to his lack of diligence is an injustice. 

CONCLUSION 

Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial relief. Specifically, the Board determined that Petitioner should be placed back on the TDRL to allow the PEB to conduct a periodic TDRL examination and issue a final adjudication in his case.  The Board determined Petitioner is not entitled to any further TDRL disability pay based on Title 10, United States Code, Section 1210 which terminates disability retirement pay at the expiration of the eligible TDRL period.  At the time of Petitioner’s placement on the TDRL, 10 U.S.C. § 1210 limited his eligibility for TDRL retirement pay to five years after his placement on the TDRL.  Since Petitioner was placed on the TDRL on 1 February 2002, his eligibility for TDRL disability pay expired on 31 January 2007.  

RECOMMENDATION 

In view of the above, the Board directs the following corrective action. 

Petitioner’s naval record be corrected by reinstating him to the Temporary Disability Retirement List effective the date of this letter.  The sole purpose of his reinstatement is so he may undergo a physical examination and have the Physical Evaluation Board make a final determination of his disability status in accordance with Title 10, U.S. Code, Section 1210.  

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. 


10/21/2019