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

							HD: hd
									Docket No. 05704-06
										18 December 2006

This is in reference to your application for correction of your naval record pursuant to the provisions of title 10 of the United States Code, section 1552. You requested, in effect, that your naval record be corrected to show you did not decline promotion to lieutenant commander with a date of rank and effective date of 1 July 2005, but accepted it, and that your retirement on 1 October 2005 was in the grade of lieutenant commander.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on l4December2006. ~ 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 andpolicies. In addition, the Board considered the advisory opinions furnished by the Navy Personnel Command dated 15 September 2006 with reference (b) and 17 October2006, copies of which are attached. The Board also considered your letter dated 22 November 2006 with enclosures.

After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. In this connection, the Board substantially concurred with the comments contained in the advisory opinions.

The Board particularly noted that your letter of 15 July 2005 stated “...if the Navy intends to rescind [your] retirement orders unless [you] decline [your] congressional appointment to the next higher grade, then [you] decline [emphasis added] [your] appointment.” The Board found that it was your desire to have your retirement orders executed, and that you did have to decline promotion to avoid having the orders rescinded. The Board did not consider your declination on this basis to have been “under duress” for purposes of determining whether it was legally effective. The Board recognized that the quality of your service was not in dispute. The Board was unable to find the advice Captain M--- may have provided as to your probable assignment in the event you did not retire constituted threatening you. The Board noted that reference (d) to the advisory opinion dated 17 October 2006 is your letter of 18 June 2006 in support of your application (DD Form 149). Finally, the Board did not find Secretary of the Navy Instruction 1811.3M contrary to the United States Code by establishing a time in grade requirement for retirement in the grade of lieutenant commander.

In view of the above, 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,

ROBERT D. ZSALMAN
Acting Executive Director

Enclosures

DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055~0OOO

			1811
										PERS—4822
										15 Sep 06

MEMORANDUM FOR	EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS

Via:	Assistant for BCNR Matters, PERS-31C

Subj ~

Ref:	(a) NPC memo 5420 PERS-3lC of 17 Aug 06
(b)	OPNAVINST 1811.3

1.	Reference (a) request comments and recommendations in subject’s case. Specifically, Petitioner requests his record to be updated showing he did not decline his promotion to Lieutenant Commander
(LCDR).

2.	As shown in member’s BCNR application, his retirement orders were issued prior to his promotion to LCDR. The SECNAVINST 1811.3M mentioned in member’s request has been replaced by reference (b), however the contents of the instruction are the same, and states in paragraph 4b, “... Officers who desire to retire before completion of the minimum time-in-grade (TIG) requirement must decline appointment to the next higher grade. Officers who have accepted appointment to the next higher grade must satisfy the retired grade criteria.... Also stated in reference (b), the TIC requirement for LCDR is two years. Upon submission of his voluntary retirement request Petitioner was selected for LCDR. Petitioner had the option of declining promotion and retiring, or accepting the promotion and fulfilling the necessary TIG requirement. Petitioner chose to retire and therefore declined his promotion to LCDR.

3.	Recommend disapproval of petitioner’s request to change his record showing he did not decline his promotion to LCDR.

a. this instruction is intended to be applied uniformly to all officer competitive categories and enlisted ratings, except where otherwise specifically provided.

b.	Officers must satisfy the minimum active duty time-in— grade requirement to retire in the highest grade satisfactorily served. Officers who desire to retire before completion of the minimum time-in—grade requirement must decline appointment to the next higher grade. Officers who have accepted appointment to the next higher grade must satisfy the retired grade criteria in paragraph 7. Frocking does not constitute acceptance of a promotion.
/

c.	Enlisted members must satisfy the minimum active duty time-in-grade requirement specified in paragraph 7 to obtain approval of voluntary requests for retirement and transfer to the Fleet Reserve. Time-in-grade policy exceptions must comply with the criteria in paragraph 7.

d.	Requests for retirement or transfer to the Fleet Reserve shall normally be held in abeyance pending resolution of pending investigations. Requests for voluntary retirement in cases where court—martial charges have been preferred and not disposed of shall be denied except as provided in references (c) and (d).

e.	The Commander, Navy Personnel Command (COMNAVPERSCOM) will disapprove requests for retirement and transfer to the Fleet Reserve which do not satisfy the policy and criteria established by this instruction.

5.	Authority to Approve Requests for Voluntary Retirement for Officers serving in Grades W2 through 06, and Voluntary Retirement or Transfer to the Fleet Reserve for Enlisted

a.	Approval of requests for voluntary retirement and transfers to the Fleet Reserve rests with the Secretary of the Navy (SECNAV) and the President. Pursuant to a delegation of those authorities, COMNAVPERSCOM may approve voluntary retirements as follows:

(1)	Officers of the Navy and warrant officers (W2) or above who request retirement after completing 30 or more years of active service under reference (a), section 6322.
(2)	Officers of the Navy and warrant officers (W2) or above who request retirement after completing more than 20 years

2
OPNAVINST 1811.3 17 Dec 05

d.	Unless in response to service needs, or COMNAVPERSCQM directs otherwise, requests for voluntary retirement or transfer to the Fleet Reserve will not be approved if notified by any means (E-Mail, message, telephone, or personal visit) that permanent change of station (PCS) orders will be issued, and the member is within 6 months of the normal projected rotation date (PRD)

e.	Except for separations of officers for cause and release of retirement—eligible Reserve officers as provided in reference (c) and separation of enlisted members for misconduct as provided in reference (d), article 1910-100, requests for voluntary retirement or transfer to the Fleet Reserve shall not be used to influence unrelated administrative actions.

6. Voluntary Retirement of Flag and General Officers. Flag and general officers will be considered for voluntary retirement on the basis of service needs reflected in the annual promotion and continuation plans approved by SECNAV under reference (e), and the merits of the individual case as required by reference (a), section 1370.

7. Time—in-Grade Requirements. Unless retirement in the next inferior grade is directed by SECNAV for an officer or warrant officer under reference (c), then officers, warrant officers, and enlisted members retired voluntarily or transferred to the Fleet Reserve shall be retired in the highest grade satisfactorily held upon completion of the following time-in-grade requirements. COMNAVPERSCON shall make determinations and recommendations of satisfactory service, considering the factors noted in paragraph
7h.

a.	Six months for an officer serving on active duty in pay grade 01 or 02.

b.	Two years for warrant officers and officers serving on active duty in pay grades 03, 04, and W2 through W5. In individual cases involving hardship of a non-temporary nature or exceptional or unusual circumstances, COMNAVPERSCOM may waive up to 18 months of the 2-year period.

c.	Three years for an officer serving on active duty in pay grade 05 or 06. For officers subject to the 3—year period, the President may waive any portion, except the minimum period of 6 months of the 3—year period under reference (a), section 1370, when the President determines that the individual’s case involves

DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITy DRIVE
MILLINGTON TN 38055-0000
				5420
											PERS-4800
											17 Oct 06

MEMORANDUM FOR	EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS

Via:	Assistant for BCNR Matters (PERS-31C)

Subj:	REQUEST FOR COMMENTS AND RECOMMENDATION IN CASE OF
	Ref:	(a)	PERS-4822 Memo 1811 of 15 Sep 06
		(b)	10 U.S.C. § 1370
		(c)	OPNAVINST 1811.3
		(d)	SNO DD 149 addendum dated 18 June 2006

End:	(1) BCNR File 05704—06

1.	Concur with the PERS-4822 opinion contained in reference (a) to disapprove Lieutenant (Retired request.

	of reference (b) paragraphs (1) and (2) is in error as he fails to understand that this law delegates to the Service Secretaries the responsibility of determining “satisfactory service” in the grades below 0-5. This determination is set forth in reference (c). In accordance with reference decision to not rescind his retirement request and thus not fulfill the minimum Time-In-Grade requirement outlined in reference (C) paragraph (7.b.) resulted in his declining the offered appointment as outline in reference j. paragraph (4.b.) According to reference (d), Lieutenant immediate chain of command had interpreted the requirements correctly and advised him appropriately concerning the TIG requirement, his retirement request and the offered appointment.

3.	Recommend disapproval official record. guest to change his

				Director, Officer Career Progression Branch