Docket No. 9113-19 
Ref: Signature Date 


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. 

A three-member panel of the Board, sitting in executive session, considered your application on 16 July 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 1920 CORB: 002 of 13 May 2020 and Director CORB letter 1920 CORB: 001 of 26 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 April 2011.  You were found unfit for continued naval service by the Physical Evaluation Board (PEB) on 4 September 2014 due to your Bipolar Disorder and assigned a 70% rating consistent with proposed Department of Veterans Affairs (VA) ratings.  You were transferred to the Temporary Disability Retirement List (TDRL) on 31 December 2014 pursuant to your PEB findings.  On 9 January 2017, the PEB again found you unfit for continued naval service due to your Bipolar Disorder but lowered your disability rating to 30% after reviewing your mental health records with the Department of Veterans Affairs.  On 10 January 2017, your PEB findings were mailed to you at your provided address with your election of rights.  Your case was finalized on 27 February 2017 after your election period expired.  PEB records show the 10 January 2017 letter informing you of your PEB findings was returned unclaimed.  On 2 August 2019, the VA continued your mental health rating at 70%. 

The Board carefully considered your arguments that the PEB erroneously lowered your disability rating to 30% and failed to find you unfit for your shoulder condition.  You also assert that the PEB failed to properly inform you of your PEB findings in 2017.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board concurred with the advisory.  Specifically, the Board determined that the preponderance of the evidence did not support a change to your PEB findings.  

First, the Board determined that the PEB properly lowered your disability rating to 30% based on medical records that documented an improvement in your mental health symptoms prior to the 9 January 2017 PEB review.  In particular, the Board noted that Global Assessment of Functioning (GAF) scores of 85 and 65 were documented for you approximately six months prior to the PEB review.  This indicated you suffered from mild symptoms but were functioning relatively well.  The Board noted that this was consistent with medical reports that showed you were doing well with your employment, involved in a successful personal relationship with a girlfriend, and recently purchased a house.  However, the Board also took into consideration that you experienced a hypomanic episode lasting four days in August 2016 and required medication to control your symptoms. In their opinion, your documented medical history in the months leading up to the 2017 PEB review show that you were still unfit due to your Bipolar Disorder and suffering from mild symptoms that caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  The Board found no evidence that you met the criteria for a higher disability rating as of 2017 after considering your mental health examinations in 2016.  As previously discussed, the Board found you were leading a relatively successful life despite your disability symptoms.  The Board also did not find your arguments regarding your VA rating persuasive since DODI 1332.18 only requires the PEB to use VA ratings less than 18 months old.  In your case, your 2014 and 2018 VA ratings exceeded that 18 month criteria.  In addition, your 2018 VA rating appears to be based on a number of symptoms not previously documented in your mental health examinations prior to 2017.  This was an additional factor the Board considered in determining that your 2018 VA rating does not accurately reflect your mental health condition as of January 2017.  Therefore, the Board determined the PEB appropriately used more current medical evidence to formulate your disability rating. 

Second, the Board determined there was insufficient evidence to support a finding that you were unfit for continued naval service due to Post-Traumatic Stress Disorder (PTSD).  As pointed out in the advisory opinion, PTSD symptoms were considered prior to your placement on the TDRL but determined not to meet the criteria for a PTSD diagnosis.  Further, as previously discussed, your mental health reports in the months leading up to the 2017 PEB review did not document PTSD symptoms or a diagnosis.  So the fact you were later rated for PTSD by the VA did not persuade the Board that you were symptomatic as of January 2017.  

Finally, the Board considered your claim that you were denied due process since you never received the PEB findings or election of rights after the January 2017 PEB review.  The Board concluded it was your responsibility to maintain a current address with the PEB.  Since the PEB forwarded a certified letter to the address you left on file, the Board concluded no error was committed by the PEB.  Additionally, the Board found no injustice based on its finding that the PEB appropriately reduced your rating to 30%.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.  

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of 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.  

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