DEPARTMENT OF THE NAVY
BOARD FOR 

CORRECTlON OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

TRG
Docket No:
3 June 1999

7927-98

Chairman, Board for Correction of Naval Records
Secretary of the Navy

OF

(a) Title 10 U.S.C. 1552

(1) DD Form 149 w/attachments
(2) Case Summary
(3) Subject's naval record

From:
To:

Subj:

Ref:

Encl:

Pursuant to the provisions of reference (a), Petitioner, a

1.
retired Naval Reserve Officer filed enclosure (1) with this Board
requesting that

The Board, consisting of Mr. Zsalman, Mr. Milner and Ms.

2.
Nofziger, reviewed Petitioner's allegations of error and
injustice on 18 May 1999 and, pursuant to its regulations,
determined that the corrective action indicated below should be
taken on the available evidence of record.
considered by the Board consisted of the enclosures, naval
records, and applicable statutes,

regulations and policies.

Documentary material

The Board, having reviewed all the facts of record pertaining

3.
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.

Although it appears that enclosure (1) was not filed in

a timely manner, it is in the interest of justice to waive the
statute of limitations and review the application on its merits.

Petitioner was an employee of the Matson Navigation

Cornpa:& as a licensed engineering officer from 16 August 1937.
On 7 July 1941 he accepted his commission as an Ensign in the
Naval Reserve.

d.

During World War II he served almost continuously at sea

aboard five different merchant ships.
during the invasion of the Philippines his
J. 

SINOTT was hit by a kamikaze.

Petitioner states that

ship the SS NICHOLAS

e.

After the war Petitioner retained
commission.
Title 10 U.S.C. 1332 provides
service prior to 1 July 1949 is creditable

his Naval Reserve
that all reserve
for reserve retirement

Therefore, Petitioner was credited with over eight

purposes.
years of qualifying service as of 1 July 1949.
drilling in 1953 and then earned 16 qualifying years for reserve
retirement purposes.
was promoted to LCDR (O-4).
service prior to 1 July 1949,
of qualifying service for reserve retirement purposes.
August 1969 he was transferred to the Retired Reserve.
60 years of age on 15 September 1976.

This service, when added to his
means that he has about 24 years

During this period, on 9 August 1957, he

Petitioner began

On 4
He became

f. Title 10 U.S.C. 3331 which sets forth the age and

service requirement for reserve retired pay states as it applies
to this case, in part, as follows:

. (c) No person, who, before August 16, 1945 was a

. . 
Reserve of an Armed Force . . . . is eligible for retired
pay under this chapter, unless he performed active duty
. after September 8, 1940 and before January 1,
. . . 
1947, or unless he performed active duty (other than
for training) after June 26,
1953.

1950 and before July 28,

Petitioner was commissioned on 7 July 1941 and had no active duty
Since he does not meet the active
during the required periods.
1331, he is not eligible for
service requirements of 10 U.S.C.
retired pay at age 60.

g- Petitioner contends in his application, in effect, that
the wartime active duty requirement constitutes an injustice for
those officers who served at sea with the Merchant Marine during
World War II and subsequently completed 20 years of qualifying
service. These reservists are now being denied retired pay.

h.

The Board has received applications from a number of

Evidence

However, Congress never acted on the proposed

reserve officers in the same situation as Petitioner.
in several of these cases shows that over the years, attempts
were made to get the law changed as it applied to Merchant Marine
officers.
Evidence has also been submitted showing that the
legislation.
Air Force Board for Correction of Military Records (AFBCMR) has
granted relief to at least three former Air Force Reserve
officers in the same situation by correcting the record to show
one day of active duty, other than for training, during the
A review of those cases
period 26 June 1950 to 28 July 1953.
shows that the  
individuals who have been denied retired pay because of a lack of
In the one case before the Air Force Board in
wartime service.
which the individual served as a Merchant Marine officer during
World War II, AFBCMR concluded as follows:

AFBCMR'is  apparently granting relief to all

2

. Given the total weight of the evidence in this

. . 
case, we do not understand the reason for the failure
of the Congress to enact the private relief legislation
that has been introduced in behalf of the applicant and
others similarly situated.
Nonetheless, since private
relief bills are not acted upon for a variety of
reasons, we do not draw any conclusions from the
failure of the proposed legislation to become law.
do we believe that the relief sought is beyond the
scope of our recommending authority.
we believe that this is precisely the relief the
Congress envisioned when it created Correction Boards.
Otherwise, there would be no need to invest such
extraordinary powers in the service Secretaries, acting
In view of the foregoing
through boards of civilians.
and in consideration of all the circumstances, in this
case, we believe that the application's request for
Reserve Retired pay should be approved as a matter of
equity.

To the contrary,

Nor

Some of the applicants to this Board have pointed to  
actions, and contend that this Board should follow the Air Force
precedent by granting relief in cases with the same facts. All
of the available AFBCMR cases are attached to enclosure (1).

AFBCMR's

i.

The Board's staff is aware that this Board has routinely

denied requests such as this on the grounds that granting relief
However, noting that the AFBCMR has
would be contrary to law.
granted relief in its cases,
guidance should be obtained from the Assistant Secretary of the
Navy for Manpower and Reserve Affairs  
the Assistant Secretary of the Navy  
should grant relief and award retirement benefits in the
following circumstances:

On 11 April 1997,
(M&RA) stated that the Board

it was determined that policy

(M&RA).

(1) The Petitioner had requested to serve on active
duty (other than for training) during World War II and
the request had been denied,
that making such a request would have been a futile
gesture; and

or petitioner established

(2) That the petitioner served in a named service, or
otherwise served the war effort in a manner
characteristic of military service; and

(3) the Petitioner substantially incurred the same
risks as military members who served on active duty.

The Assistant Secretary concludes as follows:

3

Petitioner served during World War II as a member of
While so
the Merchant Marine, a named service.
engaged, he was exposed to substantially the same
dangers as active duty personnel serving in the fleet.
Consequently, petitioner's failure to serve on active
duty during World War II is not the type of failure to
serve that Congress intended to address when (the law)
was originally enacted.
j. The Board is aware that Petitioner could have been

However, the Navy chose not

ordered to active duty at any time.
to do so because of the need for Merchant Marine officers.
addition, evidence has been submitted in other cases showing that
the Selective Service System was directed not to induct
individuals who were serving with the Merchant Marine because of
Some of the applicants
the critical need for merchant seamen.
have stated that it was understood that a request for active duty
in the Navy by licensed Merchant Marine officers would not be
approved.

In

CONCLUSION:

Upon review and consideration of all the evidence of record and
especially in light of the contents of enclosure
concludes that Petitioner's request warrants favorable action.
In this regard, the Board notes that Petitioner was a licensed
Merchant Marine officer when he was commissioned in the Naval
Reserve.
effort and the fact that he was a trained
officer, the Board believes that active duty orders would not
have been issued even if they had been requested.
Petitioner performed hazardous duty in support of the war effort,
the Board agrees with the Assistant Secretary that corrective
action to allow the payment of reserve retired pay is warranted.

Given the demands for merchant ships to support the war

Merchant Marine

(l), the Board

 

Since

The Board further concludes that the best way to implement this
decision is to show that Petitioner had one day of active duty
other than for training during the period 8 September 1940 to
thus meeting the requirement of the law
before 1 January 1947,
for the payment of retired pay.
the day before VJ day, has been arbitrarily selected.

Accordingly, 1 September 1945,

Petitioner will be given an opportunity to make an election under
the survivor benefit plan when his retired pay is started and
action by the Board is not required.

The Board also concludes that this Report of Proceedings should
be filed in Petitioner's naval record so that all future
reviewers will understand his status in the Naval Reserve.

4

RECOMMENDATION:

That Petitioner's naval record be corrected to show that he

a.
served on active duty other than for training on 1 September
1945.

That a copy of this Report of Proceedings be filed in

b.
Petitioner's naval record.

It is certified that a quorum was present at the Board's

4.
review and deliberations, and that the foregoing is a true and
complete record of the Board's proceedings in the above entitled
matter.

ROBERT D. ZSALMAN
Recorder

e&
ALAN  E. 
Acting Recorder

GOLDSMITH

Pursuant to the delegation of authority set out in Section 6(e)

5.
of the revised Procedures of the Board for Correction of Naval
Records (32 Code of Federal Regulations, Section 723.6(e)) and
having
announced that the foregoing corrective action,
authority of reference
behalf of the Secretary of the Navy.

its provisions, it is hereby
(a), has been approved by the Board on

assured compliance with

taken under the