Docket No. 9656-19 
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. 

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 23 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 Senior Medical Advisor CORB letter 1920 CORB: 002 of 17 May 2020 and Director CORB letter 1920 CORB: 001 of 4 June 2020 along with your response to the opinions.  

A review of your record shows that you were commissioned after graduating from the Naval Academy and commenced active duty in the Navy on 26 May 1993.  However, during your time at the Naval Academy, you were treated for Epstein Barre virus along with anxiety and heart palpitations in 1992.  In October 1998, the Physical Evaluation Board (PEB) found you unfit for Panic Disorder with Agoraphobia after deciding additionally referred conditions of Epstein Barr Disease and Primary Hypothyroidism not to be separately unfitting.  Despite the PEB findings in your case, it appears these findings were never promulgated.  As a result, you continued your career in the Navy.  You continued to be tested neurologically which resulted in a medical board addendum from Neurology that concluded you were fit from a neurological standpoint. After you were again referred to the PEB by a medical board in November 1998, the PEB found you fit for active duty; a finding you accepted in May 1999.  After continuing your Navy career for several years, another medical board referred you to the PEB for Status Post Epstein Barr Encephalitis with secondary Panic Attacks and Other Behavior Episodes in February 2003.  A non-medical assessment prepared by your command on 27 February 2003 noted that you made outstanding contributions to the command but struggled in large group settings.  As a result, you were prevented from assignments of greater responsibility and leadership.  The PEB again found you fit for active duty in May 2003 and denied your request for a formal hearing in September 2003.  As a result, you were released from active duty on 1 February 2004 after failing to select for promotion.  Once you entered the Navy Reserve, you were promoted to O-4 on 1 October 2004 and eventually earned sufficient service credit to be transferred to the Retired Reserve list on 1 December 2014.  While you were serving in the Navy Reserve, the Department of Veterans Affairs (VA) rated you at 50% in 2005. 

The Board carefully considered your arguments that you were unfit for continued naval service at the time of your release from active duty and should have been placed on the disability retirement list.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinions in your case.  Specifically, the Board determined 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 at the time of your release from active duty.  

The sole standard to be used in making determinations of physical disability as a basis for retirement or separation is unfitness to perform the duties of office, grade, rank or rating because of disease or injury incurred or aggravated while entitled to basic pay. Each case is considered by relating the nature and degree of physical disability of the member to the requirements and duties that member may reasonably be expected to perform in his or her office, grade, rank or rating. In your case, the Board acknowledged that you suffered from a qualifying disability condition but was unable to conclude you were unable to perform your military duties.  In the Board’s opinion, your performance record and non-medical assessment does not show an occupational impairment sufficient to merit a finding of unfitness.  In your August 2002 fitness report, you earned a 4.83 trait average while performing as Assistant Operations Officer and were strongly recommended for promotion to O-4.  The Board considered that this fitness report occurred only approximately six months prior to your referral to the PEB in February 2003.  Additionally, the non-medical assessment in your case described your contributions to the command as “outstanding” while noting you could not be assigned greater responsibility due to your disability condition.  In the Board’s opinion, the non-medical assessment was consistent with your August 2002 fitness report that documented you were performing well above fleet averages for your paygrade despite not being able to be assigned greater responsibility that would have made you more competitive for promotion.  Therefore, to the Board, the preponderance of the evidence shows that you were able to perform your duties in a manner to earn performance marks well above fleet averages despite not being able to function well in large group setting.  The Board also considered the fact you were promoted to O-4 after your release from active duty and was able to earn sufficient service credit over a 10 year period to retire from the Navy Reserve.  Regardless of how you earned the service credit, this was additional evidence to the Board that you were satisfactorily performing duties required of you by the Navy.  Therefore, despite your 2005 VA rating, the Board concluded your performance record strongly supports the 2003 PEB decision to find your fit for active duty and would have allowed you to continue serving in the Navy had you selected for promotion.  Finally, the Board concluded it had sufficient evidence to make their findings based on the available evidence and did not need an additional advisory opinion from a Neurologist.  The Board noted that Director, Secretary of the Navy, Council of Review Board is the Department of Navy’s executive agent for the PEB and has oversight over all Navy disability matters.  Since your request was to be found unfit and placed on the disability retirement list, his opinion on your case was determined to be particularly relevant. 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 issue(s) 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.  

3