DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0 TRG

Docket No: 4661-01
30 July 2001

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

OF

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

(1) Case Summary

From:
To:

Subj:

Ref:

Encl:

1.
Pursuant to the provisions of reference (a), Petitioner, a
retired commissioned officer in the United States Naval Reserve
(USNR) filed an application with this Board requesting that his
record be corrected to show that he transferred to the Retired
List on 17 May 1979 vice on any other date.

The Board, consisting of Mr. Cooper, Mr. Lightle and Mr.

2.
McPartlin, reviewed Petitioner's allegations of error and
injustice on 17 July 2001 and,
determined that the corrective action indicated below should be
taken on the available evidence of record.' Documentary material
considered by the Board consisted of the enclosure, naval
records, and applicable statutes, regulations and policies.

pursuant to its regulations,

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.

Petitioner's application was filed in a timely manner.

C .

Petitioner was a member of the National Guard and the

Army Reserve during the period 10 December 1936 to 7 January
1946.
II because he was found to be physically unqualified.

However, he was not called to active duty during World War

d.

Petitioner completed medical school and on 28 June 1954
he was commissioned a reserve LT (O-3) in the Navy Medical Corps.
He subsequently served on active duty for about 28 months and was
honorably discharged on 15 December 1956.
commission as a CDR  
over 11 continuous qualifying years for reserve retirement.
December 1971 he transferred to the inactive status list and was

(O-5), USNR, on 15 November 1957 and earned

He then received a

On 1

Only then was he informed that he was not eligible for

credited with 20 years of qualifying service at that time. He
became 60 years of age on 17 May 1979 and applied for his retired
pay.
retired pay because he did not meet the wartime service
requirements set forth in Title 10
12731).
without eligibility for retired pay at age 60.

On 1 June 1981 he was transferred to the Retired Reserve

  U.S.C. 1331 (now renumbered as

e.

Title 10 U.S.C. 12731 denies retired pay to individuals
who were members of a reserve component during World War I, World
War II, the Korean War, the Berlin Crisis or the Vietnam era, but
who did not serve on active duty during any of these periods.
Petitioner had no active duty during any of these periods.

f.

The Department of the Navy's policy in cases such as

Petitioner's is set forth in a memorandum from the Assistant
Secretary of the Navy, dated 11 April 1997, which states, in
pertinent part, as follows:

. 

. Board for Correction of Naval Records panels should

. 
be informed that retirement benefits may be awarded in
the following circumstances:

(1) The petitioner had requested to serve on

active duty (other than for training)
request had been denied,
making such a request would have been a futile gesture;

or petitioner establishes that

. and the

. . 

 

(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.

g.

Based on the foregoing,

the Board has corrected the

These individuals were not called to active duty because

records  of numerous Merchant Marine officers who had Naval
Reserve commissions during World War II to show one day of active
duty.
they were needed as Merchant Marine officers.
officers met all of the other requirements for reserve retired
pay, this action allowed payment of retired pay, retroactive to
their 60th birthdays.

Since these

h.

Petitioner applied to the Board in 1999 requesting that
his record be corrected to allow his entitlement for retired pay.
Since none of his service in the Navy met the requirements set

2

forth in the Assistant Secretary's memorandum, the Board denied
his request for retired pay.
is attached to enclosure (1).
given his service in the Army Guard and Reserve from 1936 to 1946
he could apply to the Army Board for Correction of Military
Records (BCMR) because that Board could correct his record to
show active service during World War II.

A copy of the Board's denial letter

However, he was informed that

i.

On 8 March 2001 the BCMR concluded that had Petitioner

been physically able, he would have served on active duty during
World War II, and that it was unjust and inequitable to deny him
retired pay simply because he never served on active duty as an
Army Reservist.
Therefore, it was directed that his record be
corrected to show that he performed one day of active duty, other
than for training, during World War II.
action is attached to enclosure (1).

A copy of the 

BCMR's

j.

The 

BCMR's action was sent to the Naval Reserve

Personnel Center, which added the one day to his record of
service and sent him a letter, dated 17 April 2001, authorizing
his retired pay "effective 17 May 1979, his 60th birthday.
However, the Defense Finance and Accounting Service then applied
the six-year statute of limitations for pay claims against the
government and only paid him six years of back pay.

k.

Petitioner then applied to the Board requesting that his

record be corrected to show that he transferred to the Retired
List on 17 May 1979, his 60th birthday,
approximately another 16 years of retired pay.

so that he can receive

MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record, the
majority, consisting of Mr. Lightle and Mr. Cooper, concludes
that Petitioner's request warrants favorable action.
majority notes that all of the Merchant Marine officers received
retired pay retroactive to their 60th birthday.
The majority
also notes that the Army Board could not act to correct
Petitioner's naval record to show that he transferred to the
Retired List on his 60th birthday.
that Petitioner participated in good faith in the Naval Reserve
with the expectation that he would receive retired pay at age 60.
Therefore, the majority concludes that Petitioner's record should
be corrected to show that he transferred to the Retired List on

Finally, the majority notes

The

3

17 May 1979, his 60th birthday,
retired pay from that date.

to establish his eligibility for

In view of the foregoing,
injustice warranting the following corrective action.

the majority finds the existence of an

MAJORITY RECOMMENDATION:

a.

That Petitioner's naval record be corrected to show

that he transferred to the Retired List in the grade of CDR on 17
May 1979 his 60th birthday.

b.

That a copy of this Report of Proceedings be filed in

Petitioner's naval record.

MINORITY CONCLUSION

.

McPartlin disagrees with the majority and concludes that

Mr.
Petitioner's request does not warrant favorable action.
regard, he notes that Petitioner was properly denied his retired
pay in 1979 by action of law.
Although the action by the BCMR
Board established his eligibility for retired pay, this action
would not and could not have been granted by this Board.
Finally, and most importantly, he does not meet the criteria of
the Assistant Secretary's memorandum of 17 April 1977.
Therefore, he concludes that six years of back retired pay is
sufficient relief in this case.

In this

In view of the foregoing,
warranting corrective action.

the minority finds no injustice

MINORITY RECOMMENDATION:

That Petitioner's request be denied.

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

4.
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

Acting Recorder

The foregoing report of the Board is submitted for your

5.
review and action.

MAJORITY REPORT:

iewed and

Assistant Secretary

AUG  

16 

ZOOI