DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 
 
Docket No. 3978-21 
Ref: Signature Date 

Dear , 

This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code. 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 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 19 August 2021. 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. 

A review of your record shows that you entered active duty with the Navy Reserve in November 2005. After suffering a skull injury during your combat deployment to     in February 2007, you underwent surgery but continued to suffer from multiple disability conditions related to your Traumatic Brain Injury (TBI). As a result, you were found unfit for continued naval service by the Physical Evaluation Board (PEB) in August 2008 for TBI with related diagnoses and transferred to the Temporary Disability Retirement List (TDRL) after your release from active duty on 30 September 2008. Post-discharge, the Department of Veterans Affairs (VA) rated you a combined 80% for multiple service connected disability conditions that, you assert, is currently a combined 100%. On 6 February 2014, President, PEB directed you to be administratively removed from the TDRL as a result of your failure to attend your final TDRL examination. You assert this has led to your loss of Identification Card benefits. 

The Board carefully considered your arguments that you deserve to be placed on the Permanent Disability Retirement List. You argue that your removal from the TDRL was by “clear and unmistakable error.” That you were retired from the Navy with a 100% disability rating and are currently rated a combined 100% by the VA. Unfortunately, the Board disagreed with your rationale for relief. 

In reviewing your case, the Board concluded the preponderance of the evidence does not show an error was made in removing you from the TDRL. Military disability regulations require servicemembers placed on the TDRL to attend a final TDRL examination to allow the PEB to issue a final adjudication of their disability case within a statutorily mandated period of five years. The Board found no evidence in your case that you attended a final TDRL examination as required by the regulations. The fact the VA rated you a combined 100% was not persuasive evidence you should be placed back on the disability retirement list since it doesn’t address the fact you did not attend a final TDRL examination. Absent evidence that shows you were not at fault for failing to attend the examination, the Board determined the weight of the evidence does not support relief in your case. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.
 
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. 

Sincerely, 
8/21/2021 

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