Docket No. 8601-19
Ref: Signature Date
 
Dear   ,  
 
This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (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 case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 7 August 2020.  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.  In addition, the Board considered the advisory opinions contained in Psychiatric Advisor CORB letter 1910 CORB: 002 of 6 May 2020 and Director CORB letter 1910 CORB: 001 of 13 May 2020; copies of which were previously provided to you for comment. 
 
A review of your record shows that you entered active duty with the Navy in October 2003.  You deployed to Iraq in 2005 and were diagnosed with Post-Traumatic Stress Disorder (PTSD).  As a result, you were placed on limited duty in September 2007.  On 3 September 2008, you were returned to full duty despite notations in your record that you were suffering from Depression and Anxiety symptoms that required medication.  On 9 September 2008, you were medically cleared for separation despite reported mental health symptoms.  As a result, you were discharged on 27 October 2008 at the end of your obligated active service.  Post-discharge, the Department of Veterans Affairs (VA) rated your PTSD at 30%. 
 
The Board carefully considered your arguments that you deserve to be placed on the disability retirement list.  You assert that you were unfit for continued naval service at the time of your discharge from the Navy based on medical evidence of mental health symptoms and the need for medication.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinions in your case. 
 
First, the Board concluded the preponderance of the evidence does not support a finding that you were unfit for continued naval service at the time of your discharge from the Navy.  Unfitness is defined as inability to perform the duties of your office, grade, rank or rating due to a qualifying disability condition.  The Board relied on two medical determinations made on 3 September 2008 and 9 September 2008 that concluded that your mental health symptoms did not create a sufficient occupational impairment to merit a referral to the Disability Evaluation System.  The 3 September 2008 medical report notes that you were taking medication for your symptoms but were “doing well” with “no complaints.”  On your 9 September 2008 separation physical, you reported mental health symptoms but responded that none of your conditions limited your ability to work in your work specialty.  The Board also considered that the Manual of the Medical Department states “comprehensive evaluations are conducted for the purposes of ensuring that Service members have not developed any medical conditions while in receipt of base pay that might constitute a disability that should be processed by the Physical Evaluation Board (PEB) and to ensure Servicemembers are physically qualified for recall to additional periods of active duty.  Thus, the standards for being physically qualified to separate are the same as those being qualified to continue active duty Service … .”  Since you were medically cleared for separation less than two months prior to your discharge from the Navy, the Board concluded this was strong evidence you were fit for active duty at that time.  Further, upon examining your performance evaluation ending on 15 June 2008, the Board found more evidence of fitness for active duty.  On that performance evaluation, you earned a 3.57 trait average and received positive performance comments along with a recommendation for promotion.  In the Board’s opinion, the fact you were performing well above fleet standards for your paygrade and rating several months prior to your removal from limited duty and release from active duty supports the finding that you were fit for active duty at the time of your discharge from the Navy.   
 
Two, the Board did not find your arguments regarding being kept on limited duty over 12 months persuasive.  As previously discussed, the evidence documents that your symptoms were controlled with medication and you were performing exceptionally well.  So the fact you may have been kept on limited duty over 12 months did not convince the Board you were unfit for continued naval service.  The Board concluded, based on the preponderance of the evidence discussed in the previous paragraph, that you would have been found fit had you been referred to the Disability Evaluation System.   
 
Third, the Board was also not persuaded by your VA rating issued after your discharge from the Navy.  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.  In your case, the Board found sufficient evidence to support a finding that you were, more likely than not, fit for active duty at the time of your discharge.  In the Board’s opinion, this evidence if fitness outweighed the VA rating evidence that showed you suffered from PTSD symptoms.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
It is regretted that the circumstances of your case are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon 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 this regard, 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.   
 
Sincerely,