From:   Chairman, Board for Correction of Naval Records 
To:     Secretary of the Navy 
 
Subj:    REVIEW OF NAVAL RECORD ICO  XXX XX   USMC RET 
 
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 change his Physical Evaluation Board (PEB) assigned disability rating to 70% and a combat-related designation for his unfitting condition.   
                                              
2.  The Board, consisting of  reviewed Petitioner's allegations of error and injustice on 7 April 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 April 2006.  After commencing mental health treatment in 2014, Petitioner was eventually referred to the PEB by a medical board in December 2019 for Persistent Depressive Disorder and Post-Traumatic Stress Disorder.  The PEB found Petitioner unfit for Persistent Depressive Disorder on 31 January 2020.  The Department of Veterans Affairs (VA) proposed a 50% disability rating for the PEB referred unfitting condition on 26 February 2020.  The PEB adopted the proposed 50% rating in Petitioner’s case and recommended his placement on the Permanent Disability Retirement List (PDRL).  Petitioner was discharged from active duty effective 30 May 2020 and transferred to the PDRL with a 50% disability rating. 
 
     c.  On 19 June 2020, the VA issued Petitioner’s final disability ratings including a new 70% disability rating for his unfitting mental health condition.  The VA informed Petitioner that this new rating represents a change from the proposed rating assigned as part of the PEB process and it could warrant a change to his military record. 
                                    
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 determined Petitioner’s PEB assigned rating should be increased to 70% consistent with the final VA rating assigned to his unfitting condition on 19 June 2020.  While the Board concluded no error was made by the PEB since it relied on the proposed VA rating of 26 February 2020 in assigning a military disability rating, the Board determined an injustice exists since the VA subsequently issued a final rating different from the proposed rating.   
 
Regarding Petitioner’s request to change his PEB finding to reflect his unfitting condition was the result of a combat-related injury, the Board determined Petitioner had not yet exhausted his administrative remedies by appealing the PEB combat-related determination to the Office of the Judge Advocate General (Code 13).  Board regulations require Petitioners to exhaust their administrative remedies prior to applying to this Board.   
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by changing Petitioner’s final PEB disability rating from 50% to 70% effective the date of his placement on the PDRL. 
 
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.                         

4/8/2021
Executive Director