DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1013-21 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO FORMER MBR XXX XX USMC Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 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 his naval record be corrected to establish Petitioner’s eligibility for an Honorable characterization of service. 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 4 March 2021, 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 the 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 active duty with the Marine Corps in March 2005. After injuring his shoulder in 2006 and aggravating it while deployed to Iraq in 2007, Petitioner was referred to the Physical Evaluation Board (PEB) for his condition. The PEB found him unfit for Post-Phlebitic Syndrome and assigned him a 40% rating. Petitioner was discharged from active duty on 31 July 2008 and transferred to the Temporary Disability Retirement List (TDRL). c. Evidence in Petitioner’s record shows he attended an initial periodic physical examination (PPE) in 2012. However, it was unclear whether Petitioner attended his final PPE in 2013 before he was administratively removed from the TDRL on 5 September 2014. Petitioner argues that he attended the 2013 PPE at Ft. Riley but his medical providers failed to submit his report. There is no evidence in the record that Petitioner attended the 2013 PPE and Wounded Warrior Regiment (WWR) logs show they were unable to reach him until June 2014 during their outreach efforts. Regardless, Petitioner was removed from the TDRL based on the lack of a final PPE. d. WWR logs later document that Petitioner was informed of his administrative removal in 2017. Petitioner asserts he was working with a Gunnery Sergeant to seek a correction of his record with this Board regarding his TDRL removal when the Gunnery Sergeant retired. He apparently ceased his pursuit of a correction until he was again contacted by WWR in 2020. Petitioner provided evidence that he retained his combined disability rating of 70% from the Department of Veterans Affairs which presumably includes a 40% rating for the condition that placed him on the TDRL. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial relief. Specifically, the Board concluded Petitioner should be returned to the TDRL in order to allow the PEB to issue a final adjudication in his case. While the Board found no error with Petitioner’s removal from the TDRL based on the lack of evidence he actually attended his final PPE, the Board felt denying Petitioner the potential for retirement benefits due to his lack of diligence would perpetuate an injustice since Petitioner appeared to pursue a correction of his TDRL removal in a reasonable time upon discovering the fact. The Board took into consideration that Petitioner would not be entitled to any additional TDRL retirement pay upon his return to the TDRL while pending a final PEB adjudication. Despite the Board’s finding that depriving Petitioner of a final examination and adjudication by the PEB would be an injustice, the Board felt placing him on the Permanent Disability Retirement List was not warranted at this time. In their opinion, there was insufficient evidence to adjudicate Petitioner’s condition and determined a new examination was appropriate to allow the PEB to make an adjudication. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner was reinstated to the Temporary Disability Retirement List effective the date of this letter. The sole purpose of his reinstatement is so he may undergo a physical examination and have the Physical Evaluation Board make a final determination of his disability status in accordance with Title 10, U.S. Code, Section 1210. All due process rights associated with the Disability Evaluation System will be afforded to the Petitioner as part of the Physical Evaluation Board review. 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. 3/7/2021 Deputy Director