DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
‘ 2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

JRE
Docket No. 11128-0939
28 October 2009

 

 

This is in reference to your ‘application for correction of your
naval record ‘pursuant to the provisions of title 10 of tthe
United States Code, section 1552 in which you requested that
your record be corrected to Show that you were retired by reason
of physical disability.

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 22 October 2009. 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, your naval record, and applicable statutes,
regulations and policies. In addition, the Board considered the
advisory opinion furnished by the Director, Secretary of the
Navy Council of. Review Board (SECNAVCORB) dated 6 August 2009, a
copy of which is attached, and your rebuttal thereto.

After careful and conscientious consideration of the entire
record, and notwithstanding the recommendation contained in the
advisory opinion from the Director, SECNAVCORB, the Board found
that the evidence submitted was insufficient to establish the

existence of probable material error or injustice in your naval
record. ,

The Board concluded that in view of your failure to disclose
your pre-service history of posttraumatic stress disorder when
you applied for enlistment, it would not be in the interest of
justice to correct your record to show that you were retired by
reason of physical disability due to posttraumatic stress
disorder.

The Board found that you underwent a pre-enlistment physical
examination on 9 January 2003, and completed a DD Form 2807-1,
Report of Medical History, on that date in which you denied
having any significant medical history, to include a history of
nervous trouble of any sort (anxiety or panic attacks), frequent
trouble sleeping, counseling of any type, depression or
excessive worry, and evaluation or treatment for a mental
condition. Significantly, you failed to disclose that you had
experienced symptoms of posttraumatic stress disorder that you
had experienced prior to enlisting, such as hypervigilance,
increased startle response, nightmares, flashbacks, social
isolation, and avoidance, as indicated in a medical record entry
dated 18 October 2004. You experienced similar symptoms after
you were wounded in Iraq in 2004. A Department of Veterans
Affairs (VA) medical record entry dated 15 November 2006
indicates that. you experienced periods of “hypervigilence,
reexperiencing and avoidance” after a traumatic event which _
occurred prior to your enlistment; thereafter you dropped out. of
school for six months and later attended an alternative high
school; you “received little professional treatment” after the
traumatic event; you attended a university for several months
but were not “able to cope”; you continued to experience some
posttraumatic symptoms, were shaken by world events, and decided
to join the Marine Corps. In hindsight you were “able to
conceptualize this choice [enlistment] as being somewhat counter
phobic”, and stated “Intellectually, I knew I was unprepared to
cope.”

The Board also concluded that the provisions of 38CFR4.129 would
not be applicable to your case even if it were to disregard the

‘manner in which you procured your enlistment and determine that

you are entitled to disability separation or retirement. In the
Board’s opinion, the provisions of title 38, Code of Federal
Regulations, part 4.129 (38CFR4.129) required VA rating
officials to apply a convalescent rating, rather than a minimum
rating, to mental disorders due to traumatic stress. As such,
the provisions of 38CFR4.129 were inapplicable to service
members who underwent military disability evaluation prior to
the enactment of the National Defense Authorization Act of 2008
(Public law 110-181). Furthermore, 38CFR4.129 pertains to cases
where a mental disorder develops in service. Your disorder
developed prior to your enlistment. The Board also found that
reference (c) to the advisory opinion was issued to ensure that
the cases of former service members who are entitled to apply to
the Physical Disability Board of Review (PDBR) will be
adjudicated under the same standards regardless of whether they
opt to apply to the PDBR or a service correction board such as
the Board for Correction of Naval Records. As you were not
discharged by reason of physical disability, you are not
entitled to apply to the PDBR, and the provisions of reference
(c) to the advisory opinion are not explicitly applicable to
your case.

The fact that the Department of Veterans Affairs (VA) has rated
your disability at 100% since 20 April 2005 is not probative of
the existence of error or injustice in your naval record. The
Board found that the general rating formula for mental disorders
is contained in 38CFR4.130. A rating of 100% generally requires
a finding of total occupational and social impairment due to
such symptoms as gross impairment in thought processes or
communication; persistent: delusions or hallucinations; grossly
inappropriate. behavior; persistent danger of hurting self or...
others; intermittent inability to perform activities of daily
living (including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of close
relatives, own occupation, or own name. A rating of 70%
generally requires evidence of occupational and social
impairment with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as suicidal ideation; obsessional rituals which
interfere with routine activities; speech intermittently
illogical, obscure, or irrelevant; near-continuous panic or
depression affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such as
unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene; .
difficulty in adapting to stressful circumstances (including
work or a work-like setting); inability to establish and
Maintain effective relationships. A rating of 50% generally
requires occupational and social impairment with reduced
reliability and productivity due to such symptoms as: flattened
affect; circumstantial, circumlocutory, or stereotyped speech;
panic attacks more than once a week; difficulty in
understanding complex commands; impairment of short- and long-
term memory (e.g., retention of only highly learned material,
forgetting to complete tasks); impaired judgment; impaired
abstract thinking; disturbances of motivation and

mood; difficulty in establishing and maintaining effective work
and social relationships. At the time of your discharge there
were modifications to the rating schedule for mental disorders
prescribed by the Secretary of Defense which were more stringent
than the general rating guidance and generally resulted in lower
ratings than those assigned by VA rating officials. It appeared
to the Board that VA rating officials relied primarily on your
subjective reports in assessing the degree of impairment caused
by your mental disorder. As you demonstrated when you applied
for enlistment, you not a reliable historian concerning your
mental disorder. Since you concealed your history of
posttraumatic stress disorder in order to procure your
enlistment in the Marine Corps, the Board was very skeptical of
the self-serving representations you made to VA officials when
attempting to maximize: your entitlement to VA disability
compensation. The Board noted that although your disability is
currently rated at 100% by the VA, which suggests that you are
severely socially and cccupationally impaired, likely incapable
of forming and maintaining relationships, and unemployable,
among other things, you are attending an Ivy League university
and are a member of a university athletic team.

In view of the foregoing, your application has been denied. The
names and votes of the members of the panel will be furnished
upon request.

It is regretted that the circumstances of your case are such
that favorable action cannot be taken. You are entitled to have
the Board reconsider its decision upon submission of new and
Material evidence or other matter not previously 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,