DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: Ref: Signature Date This letter is in reference to your reconsideration request dated 6 August 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. Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits. A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 25 November 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. You enlisted in the Navy and began a period of active duty on 1 May 1997. While assigned to, you began to suffer from headaches. You continued to have migraines, and you state you took leave when episodes impacted your ability to work. In 2006, you were assigned to and state that your migraines were exacerbated by the stress of a new management position. In 2007, you suffered a back injury while at command physical training. You continued to suffer from migraines. In 2011, the Head of Naval Neurology prescribed a reduction in work schedule to four hours per day and referral to the DES process. On 6 July 2011, a Medical Evaluation Board referred you to a Physical Evaluation Board (PEB). On 9 September 2011, the informal PEB found you fit for duty. You subsequently requested a hearing. On 25 January 2012, the formal PEB found you fit for continued duty in the naval service. On 26 April 2013, you were discharged from the Navy with an honorable characterization of service. On 27 April 2013, one day after your discharge, Veterans Affairs (VA) awarded you a 100% service connected disability rating. You previously petitioned the Board in 2013, seeking a revision of the January 2012 decision by the PEB that found you fit for duty. An Advisory Opinion (AO) was issued by the Council of Review Boards (CORB) during the review of your previous petition. The AO determined that there was insufficient evidence to support a medical retirement. The previous Board denied your request for corrective action. In your current request, you again ask for a change to the January 2012 PEB determination from fit for duty to unfit for continued naval service. You seek the change to qualify for a disability retirement. You provide a brief in support of your request and contend that your medical conditions have persisted, to include a constant struggle with depression. You assert that the previous Board and the CORB did not properly apply the “reasonably perform” standard of SECNAVINST 1850.4 series, and that the prior decision was arbitrary and capricious. You also claim that the VA’s determination of 100% disability the day after your discharge from the Navy was not properly addressed. The current Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including the issues you raised in your brief. The Board considered whether the 2012 PEB determination was issued in error or unjustly. The Board reviewed the PEB’s determination of fitness for duty in consideration of the VA’s determination of 100% disability on 27 April 2012, and in light of your statements regarding the limiting impact migraines had on your ability to perform your duties. The Board noted that you state you took leave when episodes impacted your work and that more stressful assignments such as your exacerbated you migraines. The Board noted, however, that SECNAVINST 1850.4 series states a finding of fitness for continued duty is based on evidence that establishes that a member is reasonably able to perform the duties of his or her officer, grade, rank or rating. Furthermore, SECNAVINST 1850.4 series states that with a finding of fit to continue naval service is the understanding that the mere presence of a diagnosis is not synonymous with a disability. The Board also noted that you had a decline in performance from 4.17 to 3.00, and considered the timing of the VA’s 100% disability determination. The Board took the VA’s determination into account, but found that the VA’s rating was not determinative on the PEB or the Navy’s issuance of a disability retirement. The VA’s rating, unlike the PEB’s determination, is not tied to unfitness for military duty. The Board found that you suffered persistent migraines during your military service, but determined that you did not provide sufficient evidence that established that you could not reasonably perform your duties due to a medical condition or disability while you were serving in the Navy. The Board concluded that the PEB’s findings were issued without error or injustice, and correction to your records to assign you a disability retirement 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.