Docket No: 3936-21 

From:  Chairman, Board for Correction of Naval Records 
To: Secretary of the Navy 

Subj: REVIEW OF NAVAL RECORD ICO 

Ref: (a) Title 10 U.S.C. 1552 
Encl: (1) DD Form 149 w/attachments 

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 place him on the Permanent Disability Retirement List (PDRL). 

2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 26 August 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 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 Navy in November 2009 and served as a Hospital Corpsman.  During a deployment to in 2011, he was severely injured by an Improvised Explosive Device that required his medical evacuation.  Eventually, he was diagnosed with Chronic Post-Traumatic Stress Disorder and found unfit for continued naval service by the Physical Evaluation Board (PEB).  On 28 May 2013, Petitioner was released from active duty and transferred to the Temporary Disability Retirement List (TDRL). 

	c. Post-discharge, Petitioner was rated for a number of disability conditions by the Department of Veterans Affairs (VA) related to his combat related injuries. He asserts that returning for treatment at the VA hospital triggered his PTSD and he eventually withdrew from treatment as a result.  He admits to intentionally missing his final TDRL examination to avoid further triggering and this led to his administrative removal from the retirement list.  He requested clemency from the Board to place him on the PDRL in order for him to recover his TRICARE benefits.  He argues this would allow him to continue his treatment in a more private setting. 

CONCLUSION 

Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief.  Specifically, the Board determined that no error was committed by the PEB in administratively removing Petitioner from the TDRL since it was his responsibility to attend his final TDRL examination and he admitted to missing the appointment. However, the Board determined an injustice exists in Petitioner’s record that should be addressed by reinstating him to the TDRL. The Board felt denying Petitioner disability retirement benefits based on behavior related to his mental health condition would perpetuate an injustice. In making their findings, the Board considered the fact Petitioner submitted his request to be placed on the PDRL within a reasonable time from his removal from the TDRL. Despite their finding that an injustice exists, the Board concluded that it insufficient evidence exists to place Petitioner on the PDRL as requested.  The Board determined it was more appropriate to return Petitioner to the TDRL in order for him to undergo a TDRL examination and allow the PEB to make a final adjudication in his case. 

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 shall 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. 


								8/30/2021
								Deputy Director