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

Docket No: 7128-19  
Ref: Signature Date 
 
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 

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 be reinstated to the Temporary Disability Retirement List (TDRL) in order to have a final Physical Evaluation Board (PEB) adjudication of his case. 

2.  The Board, consisting of      , reviewed Petitioner’s 
allegations of error and injustice on 31 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 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 Navy in June 2009.  On 27 September 2013, he was transferred to the TDRL after being found unfit for continued naval service for Traumatic Brain Injury.  Petitioner was later administratively removed from the TDRL after failing to attend his final periodic TDRL examination.   

CONCLUSION 

Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief.  Specifically, the Board determined that Petitioner failed to exercise due diligence to attend his required periodic TDRL examinations.  However, they concluded that to deny Petitioner the potential for lifetime military disability benefits due to his lack of diligence creates an injustice. In their opinion, that injustice can be remedied by allowing him another opportunity to attend a periodic examination so the PEB can issue a final adjudication in his case.  The Board also noted Petitioner was diagnosed with a concussive syndrome that may have affected his cognitive abilities.  This mitigation evidence was also considered in granting Petitioner another opportunity to fulfil his TDRL obligations. 

RECOMMENDATION 

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

Petitioner was reinstated 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. 


11/4/2019