DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
CRS
Docket No: 3199-01
20 September 2001
From:
To:
Subj:
Ref:
Encl:
Chairman, Board for Correction of Naval Records
Secretary of the Navy
L RECORD OF
(a) 10 U.S.C. 1552
(b) DOD Instruction 1332.28
(1) DD Form 149 w/attachments
(2) Case Summary
(3) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the Navy,
Board requesting, in effect,
to show that he was transferred to the Fleet Reserve under the
Temporary Early Retirement Authority (TERA) vice being discharged
on 22 January 2001.
that his naval record be corrected
filed enclosure (1) with this
2. The Board, consisting of Messrs. Pfeiffer, Zsalman, and
Kastner, reviewed Petitioner's allegations of error and injustice
pursuant to its regulations, determined
on 6 September 2001 and,
that the corrective action indicated below should be taken on the
available evidence of record.
the Board consisted of the enclosures, naval records, and
applicable statutes,
Documentary material considered by
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. Enclosure (1) was filed in a timely manner.
C . Petitioner reenlisted in the Navy on 30 April 1993 for six
years as an AT2 (E-5) with more than nine years of prior active
service.
d. His record reflects that on 29 June 1994 he received
nonjudicial punishment for failing to report an offense, larceny
of government tools,
However, he was advanced in rate to AT1 (E-6) about 18 months
solicting another to commit an offense.
and
I
I
later.
e. On 12 September 1997 a medical evaluation board found
Petitioner unfit for active duty due to coronary artery disease,
coronary bypass, anteroseptal myocardial infarction, and
While the physical evaluation board is not part
hyperlipidemia.
of the record, Petitioner was honorably separated on 29 May 1998
and transferred to the Temporary Disability Retired List (TDRL).
3 months and 28 days of
At that time he had completed 14 years,
active service.
f. On 31 July 2000 a medical reevaluation found Petitioner fit
for duty and stated that he was eligible for reenlistment.
On 5 October 2000 the Bureau of Medicine and Surgery
(BU%D) refused to grant Petitioner's request for waiver of
physical standards due to his hearing loss, history of coronary
heart disease with surgery,
because he was unable to reenlist,
was honorably discharged by reason of expiration of term of
service.
and recurring back pains.
on 22 January 2001 Petitioner
Therefore,
h. When contacted about the denial of Petitioner's request by
BUMED admitted
a member of the Board's staff,
that such action was erroneous because Petitioner's original
enlistment physical shows that he entered the service with a
hearing loss and recurring back pains.
then stated that Petitioner should have been reenlisted.
a representative of
The
BUMED representative
i. DOD Directive 6130.3 states that individuals found fit for
duty while on the TDRL should be permitted to reenlist.
j- Reference (b), at Part 7, paragraph Bla states, in part, as
follows:
.
.
. (servicemembers) shall be afforded the opportunity
.
to elect separation for physical disability or to apply
for, and if approved, nondisability retirement under
the Temporary Early Retirement Authority (TERA) . . . .
Further, the same opportunity shall be afforded to
members recommended for placement on or separation from
the TDRL.
Although Petitioner was not recommended for separation from the
TDRL, the ultimate result was the same since he was ultimately
not allowed to reenlist.
k. In his application, Petitioner requested reinstatement on
active duty.
Board's staff, he orally stated that he now desires transfer to
the Fleet Reserve in accordance with TERA.
However, after speaking with a member of the
2
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants favorable
The Board believes that Petitioner should have been
action.
reenlisted upon separation from the TDRL as allowed by
regulations then in effect.
this case, the Board also believes that the record should be
corrected to show that he continued to serve until he reached 15
upon reaching 15 years of
years of active duty service and,
service, he was transferred to the Fleet Reserve under TERA.
Since there was government error in
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that he
was not discharged on 22 January 2001 but reenlisted upon being
found fit for duty on 31 July 2000.
b. That the record be further corrected to show that he served
until he was eligible for 15 year retirement (TERA) and that he
was transferred to the Fleet Reserve under TERA on the date he
first became eligible for
such transfer.
C . That this Report of
naval record.
Proceedings be filed in Petitioner's
4. It is certified that a quorum was present at the Board's
and that the foregoing is a true and
review and deliberations,
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
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
has been approved by the Board on
authority of reference (a),
behalf of the Secretary of the Navy.
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