DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9689-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 w/attachments (2) Psychiatric Advisor CORB letter 1920 CORB: 002 of 26 May 2020 (3) Director CORB letter 1920 CORB: 001 of 8 Jun 2020 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that Petitioner’s naval record be corrected to place him on the Permanent Disability Retirement List (PDRL) with a 70% disability rating for Major Depressive Disorder. Petitioner 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). 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 23 July 2020 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of naval records, and applicable statutes, regulations and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Petitioner entered the Navy Reserve in May 1997 and eventually earned his commission in 1998. In 2010, Petitioner was deployed to when he alleges that he was a victim of a mob attack that left him suffering from Post-Traumatic Stress Disorder (PTSD). He files a Department of Veterans Affairs (VA) compensation claim that he suffers from PTSD symptoms that created significant occupational and social impairments. c. Petitioner is mobilized in support of During his predeployment training, he suffers an injury during a vehicle roll-over simulation that causes his headaches and back pain. He is eventually placed on limited duty in January 2015. However, in the meantime, Petitioner receives a 70% disability rating from the VA in October 2014. Subsequently, on 6 November 2014, non-judicial punishment (NJP) was imposed on the Petitioner for Conduct Unbecoming an Officer for his failure to report preexisting medical conditions to the Navy prior to his mobilization. He received a punitive letter as punishment for his misconduct and was ordered to show cause for retention at a Board of Inquiry (BOI). Petitioner was later retained by the BOI after a finding of no misconduct. d. On 22 April 2015, a medical board refers Petitioner to the Physical Evaluation Board (PEB) for lumbar spondylosis, sacroiliac joint dysfunction, intervertebral disc degenerations lumbar, lumbar neuritis, somatic symptom disorder with predominant pain severe, major depressive disorder, post-traumatic headaches migraine. Petitioner is found fit to continue on active duty by the PEB on 13 November 2015. When Petitioner requests a formal hearing, Director CORB denies his request. Petitioner is subsequently released from active duty on 22 February 2016. e. Effective 23 February 2016, the VA rated Petitioner for a number of service connected disabilities including migraines (30%), radiculopathy right sciatic nerve (20%), and chronic lumbosacral strain (40%). As mentioned above, he previously received a PTSD rating of 70%. Petitioner filed for line of duty benefits upon his release from active duty and was approved for Major Depressive Disorder and PTSD on 4 May 2017. His case was then adjudicated at the PEB on 18 September 2017 when they, again, concluded he was fit to continue on active duty. f. Petitioner subsequently filed an application with this Board requesting to be placed on the disability retirement list for Major Depressive Disorder. This Board placed Petitioner on the Temporary Disability Retirement List with a 30% rating for his Major Depressive Disorder. As a result, Petitioner underwent a Periodic Physical Examination (PPE) on 11 March 2019. The PPE report concluded Petitioner’s impairment for Major Depressive Disorder was consistent with his VA rating of 70%. However, on 14 March 2019, the PEB concluded the evidence supported a 10% ratingfor Petitioner’s unfitting condition. A formal PEBhearing affirmed the 10% rating based on evidence that Petitioner was an unreliable historian. On 28 August 2019, Director, CORB set aside the PEB findings and continued Petitioner on the TDRL after Petitioner filed a Petition for Relief (PFR). Petitioner subsequently filed another application with this Board to be placed on the PDRL with a 70% rating consistent with his VA assigned rating. g. In correspondence attached at enclosures (2) and (3), the office having cognizance over Petitioner’s request to be placed on the PDRL with a 70% rating determined that the evidence supports relief. The opinion relied on the 11 March 2019 PPE report that documents Petitioner met the 70% criteria for Major Depressive Disorder. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting relief. In this regard, the Board concurred with the Advisory Opinions at enclosures (2) and (3). Specifically, the Board determined that the preponderance of the evidence supports placing Petitioner on the PDRL with a 70% rating for his Major Depressive Disorder. The Board noted the assigned rating is consistent with his VA rating for his unfitting condition and the 11 March 2019 PPE report. In addition, the Board concluded the effective date for his placement on the PDRL should be the date of the PFR decision since that action exhausted his administrative remedies with the Navy on his disability case. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by placing Petitioner on the PDRL for Major Depressive Disorder, VASRD Code 9434, at 70%, with an effective date of 28 Aug 2019. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter. 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulation, Section 723.6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.