Author: terry.bynum
Company: NMCI

DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
	WASHINGTON DC 203705100
		AEG
	Docket No: 582006
	3 November 2006

            Dear Commander

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.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 31 October 2006. 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 dated 18 September 2006 from the Deputy Assistant Judge Advocate General (DAJAG) for Administrative Law and the Memorandum for Record dated 30 October 2006, copies of which are attached.

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.

You were commissioned in the Navy Reserve on 9 February 1990 after a brief period of service as an aviation cadet and then continued to serve on active duty for nearly 10 years. During this period, you were augmented into the Regular Navy, advanced to lieutenant (0-3) and awarded the Navy and Marine Corps Commendation and Achievement Medals. Upon discharge from the Regular Navy on 21 October 1999, you immediately accepted a reserve commission and apparently began participating as a drilling reservist. On 1 November 2000 you were promoted to lieutenant commander (0-4). In July 2003 you were voluntarily recalled to active duty and served for the next two years as commanding officer of a reserve center, for which you received a second Navy and Marine Corps Commendation Medal. You were released from active duty on 31 July 2005.

On 8 September 2005, you submitted an “Officer Application/Orders for Inactive Duty Training” (CNAVRES 1321/1) in which you requested assignment and inactive duty training orders, in a pay status, to the billet of commanding Officer, Detachment E, Naval Reserve Destroyer squadron 24 (NR CDS 24 DET E), Reserve Unit Identification Code (RUIC) 86248. On the application, you acknowledged the following:

I understand that favorable action on this request by the commanding officer (CO) will assign me to this unit as requested at which time I will be subject to mobilization. I am available for immediate active duty in the event of war or national emergency declared by Congress or the president . . . or otherwise authorized by law.

On that same day, you also completed a “Ready Reserve Transfer Request Service Agreement” (NAVPERS 1200/1) which stated that “this agreement is in connection with assignment to RUIC: 86248
.   .    .  CDS 24 Det E” as member of the Navy Reserve in a drill pay status. You also agreed to remain a member of the ready reserve for an indefinite period and certified that as a ready reservist, “I am and will remain immediately available for any active duty
to which I may be ordered in accordance with law.” This agreement apparently was forwarded to the Navy Personnel Command (NAVPERSCOM) and the Commander, Navy Reserve Force Command (CNRFC) on or about 8 September 2005.

On 22 September 2005 CNRFC issued orders assigning you as CO of CDS 24, Det E, effective 1 October 2005. The orders assigned a reporting senior and designated a drill site, and further stated that your “tenure in this billet will expire 30 September 2007 unless terminated sooner by proper authority or otherwise modified.”

Not until 20 October 2005 did the CO of the servicing reserve center submit the CNAVRES 1321/1 to the servicing reserve readiness command “for confirmation.” The request apparently was approved, but no date of approval is set forth on the form.

On 11 November 1995 NAVPERSCOM ordered you to active duty, effective 28 November 2005, for mobilization (MOB) event 1172 (“Noble Eagle”). These orders directed several periods of temporary duty, to be followed by a one-year period in support of Operation Enduring Freedom, beginning on or about 1 March 2006.

On 20 November 2005 the CO of your reserve center sent a message to the servicing reserve readiness command and stated as follows concerning his understanding of the events surrounding your situation:

After reviewing (the) situation, (I) determined that (Petitioner) was initially gained from his recently completed active duty recall back to the reserves OOA (on or about) 1St week of November in an incorrect lAP (in-assignment processing) status (subsequently corrected) vice his correct status as CDS Det 24 Det E Unit CO (Apply Board approved). I suspect this is what flagged him for the MOB.

Putting aside for the moment why the gain was improperly conducted (investigating, member was not gained [to the] unit early Nov due to detailer [being] behind 1 month on his issuing orders, this was roughly the same time the MOB was being prepared), respectfully request guidance on whether this new information will result in a change to his mobilization status .

At another point during processing of the case, you stated that reservists who are lAP or “below the line” are those who do not hold a particular job or billet in the Reserves and are “floating” until they find one.

On 21 November 2005 you submitted an e-mail to officials at NAVPERSCOM requesting an exemption from the mobilization “due to an administrative error.” On or about 22 November 2005 you submitted a letter requesting an exemption from mobilization event 1772 to a special cases board (SCB) to be convened at the reserve readiness command. In that request, you stated, in part, as follows:

I learned that I had been chosen for the mobilization because of my IAP (in-assignment processing) status due to an improper gain from active duty. I had finished a two year voluntary recall August 1st. I, in fact, had been apply selected to the CO billet of NR CDS-24 Det E . . . It took nearly three months to be gained into the system which happened on or about 28 October. The NRA (Navy Reserve Activity) told me that I had been gained (by some entity) and that I would be paid for the Sep and Oct drill weekends on or about 8 November. (It) was in this time frame which I appeared lAP (below the line) and therefore met the criteria for this MOB event. I have been in contact with Debbie (B) and ITC (information technology chief petty officer; E-7) (E) who have both confirmed that only volunteers and IAP personnel were selected for this MOB and that I would not have been chosen had I been gained properly into my billet.

On 22 November 2005 the SCB at the reserve readiness command unanimously recommended as follows that your request be approved:

(Petitioner)) provided a statement that he had verified from the CNRFC mob shop that all personnel selected for this particular mob event consisted of only IAP and volunteer personnel. At the time of selection, (Petitioner) was indeed in an IAP status but was wrongfully there . . . , due to an improper gain into his APPLY selected billet.

The SCB came to the conclusion that if (he) were placed into his APPLY selected billet on Oct 1, 2005 (effective date of orders) he would have had a significantly lesser chance of being selected for mobilization. The SCB did take into consideration and understands that all mob-ready SELRES (selected reservists) have the opportunity to be selected for mobilization regardless of status . . . or skill set, but based on (your) conversation with the MOB cell, lAP and volunteer personnel were the primary fillers in this mob event and he should not have been in this category.

The SCB also understood that this Admin error does not meet the criteria for an exemption, however, re-tracing all the steps that led up to this point one can clearly see that human error may have significantly contributed to (his) elevated status as a potential candidate for mobilization. Not knowing for sure that if he was in his billet . . that would have precluded him for selection, the SCB chose to give him the benefit of the doubt and lean on the side of recommending an exemption form mobilization due to an Admin error in reflecting his true status.

The SCB also stated that other factors contributed to the favorable recommendation, specifically, your recent period of extended active duty, the recent start-up of a self-owned business, and three children under the age of 10.

The reserve center CO then informed NAVPERSCOM of your request for exemption and the favorable recommendation of the SCB at the readiness command. In his letter, the CO stated, in part, as follows:

..	.. . The NRA (Navy Reserve Activity) has independently verified that an administrative mistake was made and that (Petitioner’s) gain process was not completed, placing him in an lAP status on 28 October 2005. The gain did not occur until 28 October because the officer detailer had not provided orders due to the requirement to conduct a complete reservists application package, which took three months to prepare.

The CO then conceded that an exemption may normally be made only if the individual meets certain criteria set forth in various regulations, and “no specific criteria matching this case was (sic) identified.” However, the CO also opined “extenuating circumstances exist as to warrant concurrence with the SCB . . recommendation • .

On 23 November 2005 ITC E, a reservist assigned to your reserve center, submitted a statement in which she said that while assigned to the CNRFC Mobilization Center during annual training, she worked on Noble Eagle and in recalling the needed 2594 reservists, she used a database of reservists who were volunteers or in an lAP status.

Also on 23 November 2005, by a 3-2 vote, the SCB at NAVPERSCOM disapproved your request for an exemption from mobilization. The vote sheets of the SCB reflect that two members voted to deny the request without explanation. The senior member of the SCB, Commander (CDR; 0-5) R, justified his negative vote as follows:

In discussions with Ms. Debbie (B), CNRFC, MOB cell, being lAP or a volunteer was not the sole criteria for selection to this event. Second, regardless of whether (Petitioner) was in his billet or not, he is fully eligible for mob to this event. Finally, he does not claim any personal hardship • • . or any other condition that qualifies for exemption IAW published criteria.

One of the minority members justified his favorable vote by stating, “member should not be penalized for others’ errors.” The other minority member also cited this rationale, stating that you “. . . would not have been mob’d if he was gained correctly. He would not be in this situation.”

In advising the reserve center CO of the SCB’s decision, CDR R elaborated on the adverse determination as follows:

The (SCB) fully understood the administrative situation that put (you) on the list of Selected Reservists that was considered for mobilization in this event and the fact that the local board and . . .. CO did recommend an exemption. The CNRFC Mob Cell’s criteria to initially look for only lAP and Volunteers for this mob is an internal prioritization only and NOT a hard and fast criteria that would exempt billet-holding Selected Reservists from mobilization to this event. All Selected Reservists, regardless of volunteer or lAP status, are eligible for this mobilization event.

While it is acknowledged that he was lAP vice in his billet at the time of mission sourcing, it is not deemed a reason to be excused from a legitimate set of mobilization orders to a very critical mission which his skill set fit. Even had (you) been placed in his mobilization billet, as selected from the APPLY board, he is still completely eligible for, and vulnerable to, mobilization ISO (in support of) this mission or any other valid mission the Navy requires him to do, whether it related to his specific mobilization billet or not • .

On 28 November 2005 you reported for active duty as directed in the mobilization orders.

On 28 November 2005 Ms. XXXX , a mobilization plans analyst, submitted a statement that reads, in part, as follows:

• . . CNRFC Event 1772. . . is a service rotational mission. The requirements are by rate/designator vice unit

The requirement (for Petitioner’S billet) identified any “unrestricted Warfare Qualified line Officer.” The original fill had been involuntarily recalled previously and did not “volunteer” to be mobilized a _2nd time. (Your) qualifications fit the requirements and he was involuntarily recalled.

I received a call on my cell (phone) . . . by (ITC E) .asking about (Petitioner’s) recall and said he was very upset because he is just coming off a 2-yer recall. I explained that if he had been recalled previously then he must volunteer to be mobilized a second time .

After much discussion (with Petiitoner) I discovered he had been on a 2 year recall (not involuntary recall) and had recently reaffiliated with the Navy Reserve Force, had applied for a billet, was selected but had not been assigned to a billet as yet. He was lAP at the time he was recalled and was assigned to his billet on 19 November 2005 (after he was tagged for mobilization). I ask(ed) him if he was in a commissioned unit, he said he was, however, he is assigned to an augment unit NR CDS 24 Det E .

I explained to (Petitioner) our “standard policy and practice” for filling requirements and that he was IAP when he was tagged. He is not in a commissioned nor “fenced” unit and he fit the requirement. We do not see specifics about an individual at our level nor does it apply .

On 23 November 2005 CDR (R), (Petitioner) and myself spoke on a conference call where (you) questioned me about our procedures . . . and he wanted me to “admit” that we only took lAP (and) volunteers—which is not always the case. I did my best to explain but was unsuccessful and he was very angry.

On 30 December 2005 you requested that the CNRFC Inspector General (IG) conduct an inquiry into the mobilization and direct an exemption. The letter of that date stated as follows concerning your contacts with officials at CNRFC and NAVPERSCOM:

On Saturday 19 November (2005) . . • I spoke to ( She herself verbally communicated that only lAP or Volunteers were selected for this mobilization event. I
said that I in fact was in neither category and she said to call back to the mobilization cell on Monday to discuss further actions I should take.

Monday, 21 November (2005) I called XXXX (B) who again confirmed our conversation form Saturday.

The following day a (SCB) with (CDR R) as the senior member disapproved the request for exemption . . . (The reserve center CO) forwarded the (SCB’s) decision by e-mail. in which they “fully understand the administrative situation that put (me) on the list of Selected Reservists that was considered for mobilization in this event . . They admit that there was an error placing me on “the list” for this mobilization, yet they have chosen not to correct the error. Furthermore they concluded that “The CN4J_RFC Mob Cell’s criteria to initially look for only IAP and Volunteers for this mob is an internal prioritization only and NOT a hard and fast criteria that would exempt billet-holding Selected Reservists from this event.” This is in direct contradiction to statements made by the mob cell themselves that the only people selected to Mob Event 1772 were IAP personnel and volunteers. I was the only service member chosen for this event who had a “hard” Apply Selected Command Billet and was not a volunteer. When I asked the question “who else was selected for this mobilization under (the) same criteria” directly to CDR (R) and Ms. (B) during a conference call after I learned of the (SCB’s) decision, they could not provide one name and said, and I quote CDR (R), “I think you know the answer to that question already.”

You then went on to state that you initiated a congressional inquiry and submitted documentation to the congressman that included a spreadsheet listing criteria for selection for this mobilization as well as the personnel selected. The letter generated from the inquiry indicated that mobilization cell personnel and the officer-in-charge had been contacted, and that you had been selected due to rank, designator and security clearance, and not because of your IAP status, and that either status, IAP or the particular billet he was filling “had equal possibility for mobilization . . .“ You responded to this rationale as follows:

This directly contradicts the fact that out of 97 officers selected on the spreadsheet and the 47 I am currently training with, all were volunteers or in an lAP status when mobilized. The statement that I had an “equal possibility” to be selected for this mobilization event regardless of my status is false and contradictory to his own statement of 23 November that “the (SCB) fully understood the administrative situation that put (me) on the list of Selected Reservists that was considered for mobilization in this event. . . .“ There was not an “equal possibility” because they looked at only volunteers and IAP officers for

this event. Additionally, their assertion that I fit the manpower criteria for this event is misleading. The criteria for the billet that they assigned me was any 03-05 (LT to CDR) with any “ixxx” designator and a security clearance (which I believe is a requirement for any “lxxx” officer to have). The Mobilization Cell admits that an error was made placing me in the wrong category, but hey have chosen not to correct the error .

You concluded as follows:

I have volunteered for tough assignments, and been deployed multiple times in the past without hesitation. During 10 years of active duty, I completed two full sets of workups and two six month deployments in which I flew combat missions . . . I accepted a voluntary two year recall after September 11, 2001 to fill a critical billet . . . , and left active duty just a few months ago. I am only asking for fair and equitable treatment in what I consider a matter of conscience. The evidence is clear and the (SCB) concurred that if the system had worked correctly that I would not have been selected for this mobilization. This is a correctable situation .

On 2 February 2006 the Navy IG denied the request, citing the “full consideration” you received during the SCB process. Meanwhile, on 31 January 2006, you were promoted to CDR.

On 12 April 2006 you initiated legal action in the United States District Court for the Eastern District of North Carolina requesting a temporary restraining order and permanent injunctive relief enjoining the Navy from deploying you as scheduled to Iraq on 17 April 2006, or anytime thereafter. In support of the request, you alleged the same facts and made the same legal argument that are set forth in your application to the Board for Correction of Naval Records (BCNR), specifically, that by mobilizing you, the Navy breached its contract because the NAVPERS 120071 stated that you would be the CO of NDS 24, Det E. In response, the United States Attorney filed a reply brief for the government that argued, in part, as follows:

(Petitioner) has not met, and as a matter of law cannot meet, his burden in this case. The Secretary of the Navy (SECNAV) based the decision to return (you) to active duty based on (his) agreement and signed understanding that he would be subject to mobilization and available for immediate active duty. Specifically, on September 8, 2005, (you) singed a Ready Reserve Transfer Request Service Agreement (NAVPERS 1200/1) certifying that “as a member of the Ready Reserve, I am and will remain immediately available for any active duty . . .“ Furthermore, (he) signed an Application for Inactive Duty Training form

(CNAVRES 1321/1 on the same day attesting to his understanding that he would be subject to mobilization and available for immediate active duty. Both documents clearly contemplate that (you) would be subject to immediate recall to active duty.

The decision to recall Reserve officers to active duty is a purely discretionary matter . . . Nothing in the implementing regulations or the agreements signed by (Petitioner) limits that discretion. (His) unsubstantiated claim that an administrative error resulted in his selection for mobilization discounts the fact that he affirmatively agreed to be available for recall without constraint and that all members of the Ready Reserve, regardless of position, can be called to active duty at the option of the President and (SECNAV) .

The government’s brief also stated that the case should be dismissed due to your failure to exhaust an available administrative remedy by seeking relief from the BCNR.

Attached to the reply brief was a declaration from a Captain (CAPT; 0-6) A, the Deputy Director of the Navy Reserve Personnel Administration Branch at NAVPERSCOM, which reads, in part, as
follows:

• • . (SECNAV) recalled (Petitioner) to active duty on November 11, 2005 to support Operation Enduring Freedom as part of Mobilization Event 1172. At the time of mission sourcing, (Petitioner) administratively occupied an . (lAP) status, but his selection for recall to active duty was based on an analysis of his skill set and security clearance. Even had (he) been administratively assigned to his billet as (CO, NDS 24, Det E), he would have been eligible for mobilization in support of this mission. As he acknowledged understanding to in his request for transfer to the Ready Reserve, any drilling member of the Ready Reserve is vulnerable to mobilization at any time, regardless of his or her assigned billet.

(He) may appeal the decision to disapprove his exemption request to the (BCNR) . . ., a step he has not taken.

In an order dated 18 April 2006, the court denied your request for a TRO and permanent injunction as follows:

•	. . (T)he court initially notes that (Petitioner) has not appealed the decision to disapprove his exemption request to the (BCNR) . . . This failure to exhaust administrative remedies undercuts a showing of likely success on the merits • . . In any event, the language in the Agreement

• . . and the language in the Application for Inactive Duty Training . . • both demonstrate that (you were) subject to immediate recall to active duty. Although (you contend) that his recall was due to an administrative error and violates due process, the Navy vigorously disputes that contention . . • On the state of (the) record, (your) likelihood of success on the merits is very remote . Finally, the public interest strongly counsels against issuing the requested injunctive relief.

In reaching its conclusion that the evidence does not show the existence of probable material error or injustice, the Board was aware that fundamental principles of contract law normally apply to enlistment contracts.’ Since the CNAVRES 1321/I and the NAVPERS 1200/1, when read together, are analogous to such a contract, such principles are applicable to your case. Accordingly, the Board concurred with the comments in paragraphs 4 and 5 of the DAJAG advisory opinion to the effect that the application of basic contract law principles to your case does not support your contention of error.

Accordingly, 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,

W.	DEAN PFEIFFER
Executive Director

Enclosures

1 Cinciarelli v. Carter, 662 F.2d 73, 78 (D.c. cir. 1981); Woodrick v.Hungerford, 800 F.2d 1413, 1416 (5 Cir. 1986); Pence v. Brown, 627 F.2d 872, 874 (8th Cir. 1980); Santiago v. Rumsfeld, 425 F.3d 549, 554~55 (9th Cir. 2005); castle v. Caldera, 74 F..Supp. 2d 4, 8-9 (D.D.c. 1999); Brown v. Dunleavy, 722 F..Supp. 1343, 1349 (E.D. Va. 1989).
					DEPARTMENT OF THE NAVY
					            OFFICE OF THE JUDGE ADVOCATE GENERAL
					         1322 PATTERSON AVENUE SE SUITE 3000
					     WASHINGTON NAVY YARD DC 20374-5066
		INREPLY REFER TO
		Ser 13/5MA11867.06
		18 Sep 06

From:	Deputy Assistant Judge Advocate General (Administrative Law)
To:	Chairman, Board for Correction of Naval Records

Subj:	REQUEST FOR COMMENTS AND RECOMIMENDATION TN THE CASE OF CDR

Ref:	(a) Your hr AEG Docket No. 5820--06 of 4 Aug 06

Encl:	(1) Legal Analysis

1.	This responds to reference (a), your request for our comments and recommendation in the case of CDR XXXX, UNSR Petitioner.

2.	Issue.  Whether Petitioner was mobilized and involuntarily recalled to active duty contrary to applicable principles of contract law. 

3.	Short Answer. No. Petitioner was properly mobilized and recalled to active duty according to the terms of his contract with the United States Navy.

4.	Discussion. Enclosure (1) provides a detailed legal analysis of the central issue.

5.	Point of Contact.  My pont of contact for this matter is Lieutenant XXXX at 703-604-8218 or