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

Docket No. 9610-19 
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 4 June 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 Senior Medical Advisor CORB letter 1910 CORB: 002 of 29 April 2020 and Director CORB letter 1910 CORB: 001 of 30 April 2020 along with your response to the opinions.
 
A review of your record shows that you entered active duty with the Navy in September 2005.  You were diagnosed with Type I Diabetes and Hyperlipidemia by a medical board on 5 April 2007 and referred to the Physical Evaluation Board (PEB).  The PEB found you unfit for continued naval service for your diabetes condition and assigned you a 20% disability rating.  You were discharged on 15 June 2007 with severance pay pursuant to your PEB findings.  Post-discharge, the Department of Veterans Affairs (VA) rated your for Major Depression associated with your Type I Diabetes Mellitus at 70% and Bilateral Tinea Pedis at 10%.  On 23 September 2019, the Physical Disability Board of Review affirmed the PEB assigned rating of 20%.
 
The Board carefully considered your arguments that you deserve to be placed on the disability retirement list.  You assert that the PEB failed to consider your depression and Tinea Pedis conditions that were rated by the VA upon your discharge.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinions contained in Senior Medical Advisor CORB letter 1910 CORB: 002 of 29 April 2020 and Director CORB letter 1910 CORB: 001 of 30 April 2020.  Specifically, the Board found insufficient evidence to support a finding that you were unfit for continued naval service due to your Depression or Tinea Pedis conditions. 

First, the Board examined your medical history regarding depression and noted, as late as 19 July 2006, you reported no mental health symptoms. Additionally, you were medically examined on 18 April 2007 with no mention of mental health symptoms on your separation physical.  Finally, the Board noted that your non-medical assessment did not note any performance impairments related to a mental health condition.  Based on this evidence, the Board felt the preponderance of the evidence did not support a finding that you were unable to perform the duties of your office, grade, rank or rating due to depression symptoms.

Second, the Board also found insufficient evidence to support a finding of unfitness due to your Tinea Pedis condition.  While your 18 April 2007 separation physical documented your condition, it noted that it was asymptomatic at the time.  Similarly, there was no documentation that your condition was creating any occupational impairment to merit a finding of unfitness at the time of your discharge.  

Third, the Board did not find your VA ratings probative on the issue of unfitness since 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. 

Finally, the Board did not find your rebuttal arguments persuasive.  Despite your argument that an injustice exists based on the Navy’s failure to treat your depression symptoms, the Board concluded that you did not report any symptoms for the Navy to assess.  In making this finding, the Board relied on your Post-Deployment Health Assessment of 19 July 2006 in which you reported no mental health symptoms.  Also, the fact your depression may be tied to your diabetes condition does not make it a separately unfitting condition.  Disability regulations require each qualifying disability condition to be supported by evidence of occupational impairment sufficient to prevent a service member from performing the duties of their office, grade, rank or rating. As previously discussed, there was no evidence to support such a finding for Depression or Tinea Pedis.  Finally, your record shows that you were medically examined extensively prior to a medical board decision to refer you to the PEB only for your diabetes condition and you were provided all the required due process under the DisabilityEvaluation System.  In the Board’s opinion, this lessens any argument that an injustice exists in your case and supports the findings of the PEB.

While the Board empathizes with your current medical condition, they felt compensation and treatment for your disability conditions fall outside the scope of the Department of Defense disability system and under the purview of the VA.  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,