D E P A R T M E N T OF THE NAVY
B O A R D F O R C O R R E C T I O N O F N A V A L R E C O R D S
2 N A V Y A N N E X
AEG
Docket No. 8242-00
10 April 2002
W A S H I N G T O N D C 2 0 3 7 0 - 5 1 0 0
~ubj: REVIEW OF NAVAL RECORD OF - Ref: (a) 10 U.S.C. 1552
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Encl: (1) Case Summary
(2) Subject's Naval Record
1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the Marine Corps, applied to this Board
requesting that his naval record be corrected by changing his
separation code to make him eligible for separation pay.
2. The Board, consisting of Messrs. Mackey and Pauling and Ms.
Mc~ormick reviewed Petitioner's allegations of error and
injustice on 9 April 2002 and, pursuant to its regulations,
determined that the corrective action indicated below should be
taken on the evidence of record. Documentary material considered
by the Board consisted of the enclosures, naval records and
applicable statutes, regulations and policies.
3. The Board, having reviewed all the facts of record pertaining
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. Petitioner's application to the Board was filed in a timely
manner.
c. Petitioner first enlisted in the Marine Corps on 13 June
1988 and he reenlisted on 4 November 1993. He then served until
7 January 1998, when he received a general discharge by reason of
misconduct. At that time, he received an RE-4 reenlistment code,
which disqualified him from future active or reserve service.
Even though he served on active duty for 9% years over the course
of two enlistments, Petitioner was not eligible to receive
separation pay because he was discharged by reason of misconduct.
d. In June 2000 the Naval Discharge Review Board (NDRB)
reviewed Petitioner's case and changed the characterization of
service to honorable and the reason for separation to secretarial
authority, with a separation code of "JFF.It Petitioner
subsequently contacted the Defense Finance and Accounting Service
(DFAS), advised DFAS of NDRB1s favorable action and requested
separation pay. However, on 15 November 2000 DFAS advised him
that Ityour separation code of JFF does not authorize any monetary
payment of separation pay."
e. The Deputy ~ssistant Judge Advocate General (DAJAG) for
~dministrative Law has provided an advisory opinion of 4 April
2002 to the effect that petitioner's discharge by reason of
secretarial authority entitles him to separation pay. In support
of this conclusion, the opinion cites 10 U.S.C. § 1174(b),
Department of Defense Instruction (DODINST) 1332.29, Secretary of
the Navy Instruction (SECNAVINST) 1900.7GI and Appendix D of the
Procedures Training Guide of the Defense Joint ~ilitary Pay
System (DJMS) .
f. 10 U.S.C. § 1174 states, in part, as follows:
(b) Regular enlisted members.--(l) A regular enlisted
member of an armed force who is discharged involuntarily
. . . and who has completed six or more, but less than 20,
years of active service immediately before that discharge
is entitled to separation pay computed under subsection (d)
unless the Secretary concerned determines that the
conditions under which the member is discharged do not
warrant payment of such pay.
(2) Separation pay of an enlisted member shall be
computed under paragraph (1) of subsection (d) except that
such pay shall be computed under paragraph (2) of such
subsection in the case of a member who is discharged under
criteria prescribed by the Secretary of Defense (SECDEF).
(d) Amount of separation pay.--The amount of separation
pay which may be paid to a member under this section is--
(1) 10 percent of the product of (A) his years of active
service and (B) 12 timcs the m o n t h l y basic pay to which he
was entitled at the time of his discharge or release from
active duty; or
(2) one-half of the amount computed under clause (1).
§ 1174(e) states that in order to receive separation pay, an
individual must agree to serve for three years in the ready
reserve after discharge.
g. In accordance with the authority set forth in S 1174(b)(l),
DODINST 1332.29' and SECNAVINST 1 9 0 0 . 7 ~ ~ list certain
circumstances which render an individual ineligible for
separation pay. However, neither list states that separation by
reason of secretarial authority is a disqualifying factor.
h. DODINST 1332.29 implements the authority set forth in 5
1174(b)(2) by directing only half separation pay for individuals
separated involuntarily with an honorable or general discharge
who are not fully qualified for retenti~n.~ However, this
authority is limited to those individuals separated for certain
reasons. Secretarial authority is not one of these reasons. 4
Provisions of SECNAVINST 1900.7G are in accord with the
foregoing. 5
i. The DJMS Procedures Training Guide states that an
individual separated by reason of secretarial authority, with
separation code JFF, is entitled to full separation pay. 6
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that corrective action is warranted. In this
regard, the Board concurs with the DAJAG advisory opinion that
Petitioner is entitled to full separation pay
The entitlement of a regular enlisted member to separation pay is
governed by S 1174(b)(l). That provision of law establishes a
presumption that an individual such as Petitioner is so entitled,
but also empowers the secretary concerned to disqualify certain
individuals from receiving such pay. However, neither DODINST
1332.29 nor SECNAVINST 1900.7G states that individuals separated
by reason of secretarial authority are ineligible for separation
pay. Accordingly, it is clear that Petitioner is entitled to
some measure of separation pay. Likewise, 5 1174(b)(2)
authorizes SECDEF to limit certain individuals to one-half of the
full amount of separation pay. He has exercised that authority
in DODINST 1332.29, but individuals separated by reason of
secretarial authority are not included in this limitation.
Based on the foregoing, the Board concludes that Petitioner
hccame entitled to full zcparation pay when NDRB changcd the
reason for separation from misconduct to secretarial authority.
This conclusion is buttressed by the fact that the Procedures
Guide to the DJMS so states.
The Board notes that Petitioner did not agree to serve for three
years in the ready reserve at the time of separation. However,
since he was discharged for misconduct, he was ineligible for
reserve service as well as separation pay, so he was not given an
opportunity to fulfill this requirement. Accordingly, his
failure to do so should not now preclude the award of such pay.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that on 7
January 1998 he agreed to serve in the ready reserve for three
years.
b. That the record be further corrected by amending Petitioner's
Certificate of Release or Discharge from Active Duty (DD Form
214) by adding to block 18 (Remarks) the statement "Entitled to
full separation pay."
c. That any material or entries inconsistent with or relating to
the Board's recommendation be corrected, removed or completely
expunged from Petitioner's record and that no such entries or
material be added to the record in the future.
d. That any material directed to be removed from Petitioner's
naval record be returned to the Board, together with a copy of
this Report of Proceedings, for retention in a confidential file
maintained for such purpose, with no cross reference being made a
part of Petitioner's naval record.)
4. It is certified that a quorum was present at the Board's
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
ALAN E. GOLDSMITH
Acting Recorder
5. Pursuant to the delegation of authority set out in Section 5e
of the Procedures for the Board for correction of Naval Records
(32 Code of Federal Regulations, Section 723.6[eJ), and having
ensured compliance with its provisions, it is hereby announced
that the foregoing corrective action, taken under the provisions
of r e l e ~ e n c c (a), has been dpproved by the Board on behalf of the
Secretary of the Navy.
Executive D
NAVY | BCNR | CY2003 | 09449-03
Regulations approved by the Secretary of the Navy require that Subject’s naval record be corrected, where appropriate, in accordance with the approved recommendation of the Board. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member in the Marine Corps, filed an application with this Board requesting that his record be corrected to show that he is entitled to separation pay and any other pay entitlements that may have accrued because of previous corrective...
NAVY | BCNR | CY2002 | 05475-02
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 10 December 2002. 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. Enclosure (1)...
NAVY | BCNR | CY2003 | 05106-03
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 15 October 2003. In addition, the Board considered the advisory opinion furnished by CNO memorandum 7220 Ser N130C3103U0637 dated 5 September 2003, a copy of which is attached. 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.
NAVY | BCNR | CY2002 | 07317-01
ItGKBtt is assigned when Separation code discharged by reason of misconduct due an individual is to civil conviction.4 q- On 20 June 2001 Petitioner's counsel faxed a supplemental letter of deficiency to NAVPERSCOM responding, in part, as follows to the 4 May 2001 letter from COMPHIBGRU TWO: Pursuant to MILPERSMAN 1910-710 if the (ADB) finds that the preponderance of the evidence does not support one or more of the reasons for separation alleged and recommends retention then the Separation...
ARMY | BCMR | CY2014 | 20140021118
The applicant requests separation pay. The applicant states: a. Item (b) states the applicant is entitled to full separation pay per Title 10, U.S. Code (USC), 1174. e. DD Form 214, dated 20 February 2014, which shows the applicant was honorably released from active duty on 31 December 2013, following 17 years, 8 months, and 3 days of total active service and 13 years, 3 months and 14 days of prior inactive service.
NAVY | BCNR | CY2002 | 08394-98
all its findings at paragraph 3 of its previous report at b, Petitioner ’s fitness reports for 1 May 1987 to 31 JuIi.1988 (extended to 31 October X November 1988 to 14 “Duties Assigned ”), that JuIy 1989 (last two documents at enclosure 1988) and Board ’s previous report) both show, in block 28 ( Assistant Judge Advocate General (Operations and Management) no express statement in either report to the effect that he served as the Principal Deputy Assistant Judge Advocate General (PDAJAG) 1988...
ARMY | BCMR | CY2014 | 20140021725
The applicant's DD Form 214 shows he was discharged on 30 August 2013 under the provisions of paragraph 5-3 of Army Regulation 635-200 by reason of Secretarial authority. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. 10 USC 1174 provides that a regular enlisted member of an Armed Force, who is discharged involuntarily or as a result of denial of reenlistment, and who has completed 6 or more but less than...
NAVY | BCNR | CY2003 | 00240-03
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 22 October 2003. When the sole basis for separation is a serious offense that resulted in a conviction by a special or general court-martial that did not impose a punitive discharge, and an Other Than Honorable discharge is warranted. d. When an Administrative Board finds that a preponderance of the evidence supports one or more of the reasons for separation...
NAVY | BCNR | CY1998 | 05583-98
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 23 March 1999. In addition, the Board considered the advisory opinion furnished by CMC memorandum 1001/ 1 MMEA-6 of 17 February 1999, a copy of which is attached. - On 7 April 1997, u r n t e His current reenlistment was r enlistment contract was a probationary reenlistment contract.
NAVY | BCNR | CY2000 | 07909-00
Pursuant to the provisions of reference (a), Subject hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to establish entitlement to a zone "A" Selective Reenlistment Bonus (SRB) for the ABF rating. Shy, and Ms. McCormick, reviewed Petitioner's allegations of error and injustice on 27 February 2001 and, pursuant to its regulations, determined that the corrective action indicated below should be taken...