DEPARTMENT OF THE NAVY

BOARD FOR  

CORRECTICYI(  OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-510

0

ELP
Docket No. 6751-00
29 May 2000

From:
To:

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

Subj:

REVIEW OF NAVAL RECORD OF

Ref:

(a) 10 U.S.C. 1552
(b) OPNAVINST  
(c) NAVMILPERSMAN

1160.5C

Encl:

(1) Case Summary
(2) Subject's naval record

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

1.
former enlistment member of the United States Navy, filed
enclosure (a) with this Board requesting, in effect, that his
reenlistment code be changed.

The Board, consisting of Messrs. Lightle, Taylor, and

2.
Geisler reviewed Petitioner's allegations of error and injustice
on 16 May 2000 and, pursuant to its regulations, determined that
the corrective action indicated below should be taken on the
available evidence of record.
by the Board consisted of the enclosures, naval records, and
applicable statutes, regulations and policies.

Documentary material considered

The Board, having reviewed all the facts of record

3.
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.

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.

C.

Petitioner reenlisted in the Navy on 31 August 1991 for

six years as an EN3 (E-4).
he had completed more than six years of prior active service and
the Bureau of Naval Personnel had authorized a selective
reenlistment bonus  

At the time of his reenlistment,

(SRB).

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d.

Petitioner served without incident until 28 February

1983 when he received nonjudicial punishment for assault, breach
of the peace, and use of provoking speech and gestures.
Punishment imposed was a suspended reduction in rate to ENFN
(E-3) and 30 days of restriction.

e.

Petitioner continued to serve without further incident.

However, on 23 June 1995, he was not recommended for reenlist-
ment due to failure to meet the professional growth criteria for
his pay grade.
The record reflects that on 25 June 1995 he was
honorably discharged as an EN3 by reason of "Completion of
Required Active Service" and assigned an RE-4 reenlistment code.
At that time, he received nearly $16,000 in involuntary
separation pay.
until 30 August 1997.
is shown in the record.
At the time of his discharge he had
completed a total of 10 years and one day of active service.

However, his six year enlistment did not expire
No authorization for this early discharge

f.

Reference 

(b) provides that individuals serving in pay
grade E-4 are eligible to reenlist or extend provided the total
period of active service does not exceed the high-year tenure
(HYT) limit of 10 years.
of an RE-6 reenlistment code to individuals who are denied
reenlistment because of HYT.

Regulations authorize the assignment

g-

Article 3620280 of reference  

(c), in effect at the time

stated that an individual could be

of Petitioner's separation,
separated by   reason of erroneous reenlistment if the reenlist-
ment would not have occurred had the relevant facts been known,
it did not occur due to fraud by the individual, and the defect
is unchanged since the time of reenlistment.
Prior to separa-
tion, the individual must be afforded certain procedural rights,
such as notification and an opportunity to respond.
Petitioner had more than six years of service, he was entitled
to present his case to an administrative discharge board
If an individual objected to separation,
be directed by Pers-254,

(ADB).
such action could only

the predecessor to Pers-814.

Since

 

h.

At enclosure  

(l), an advisory opinion from the

Favorable Enlisted Separations Section of the Navy Personnel

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PLtitioner was authorized a six

Command (Pers-814) states that  
However,
year reenlistment for selected reenlistment bonus.
Pers-814 a-lso states that individuals who reenlist or extend
beyond their HYT date are technically on an erroneous contract,
but are allowed to remain on active duty until they reach their
Pers-814 concludes that Petitioner was
high year tenure date.
appropriately discharged since his record does not reflect a HYT
waiver.
Pers-814 does recommend that Petitioner's reenlistment
code be changed to RE-6.

MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record, the
majority, consisting of Messrs. Lightle and Geisler, concludes
In this
that Petitioner's request warrants favorable action.
regard, the majority substantially concurs with the advisory
opinion that Petitioner was appropriately discharged, but also
agrees but that the reenlistment code should be changed to
RE-6.
Petitioner did not request any further corrective action.

Along these lines, the majority also notes that

MAJORITY RECOMMENDATION:

a.

That Petitioner's naval record be corrected by changing

the RE-4 reenlistment code,

assigned on 25 June 1995, to RE-6.

b.

That no further relief be granted.

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
references being made a part of Petitioner's
naval record.

MINORITY CONCLUSION:

The minority member, Mr. Taylor, agrees with
Petitioner's request should be granted by changing his
reenlistment code from RE-4 to RE-6.
that Petitioner's discharge was improper and should be set
aside, despite the fact that he did not request such relief.

However, he also believes

the majority that

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4

The minority member begins his analysis by noting that the
narrative reason for separation now of record,  
required active service," is clearly incorrect.
separation is used when an individual is discharged after
completing an enlistment or period of obligated service.
time of his discharge, Petitioner had completed only four years
of his six year reenlistment.
foregoing reason was improper.

Hence, separation for the

ffcompletion  of

This reason for

At the

his discharge on 25 June 1995 may be

The minority member cannot agree.

Pers-814 essentially proposes that since Petitioner's
reenlistment was erroneous to begin with, in that he was
permitted to reenlist for six years instead of the four years
authorized by regulations,
Prior to
deemed proper.
separating Petitioner by reason of erroneous reenlistment, the
command would have been required to comply with the procedural
requirements of Article 3620280.
do so.
unwilling to conclude that Petitioner would necessarily have
been separated.
recommended his retention in the Navy,
performance.
the command could not have taken such action and the case would
have been forwarded to Pers-254 for final action.

Had there been such compliance, the minority is

An ADB could have and might well have

Further, if Petitioner had objected to separation,

Clearly, the command did not

given his overall good

Accordingly, the minority member concludes that the command
committed prejudicial  
1995.
Petitioner was not discharged on that date but continued to
served until the expiration of his enlistment on 30 August 1997.

Therefore, the record should be corrected to show that

,error by discharging Petitioner on 25 June

MINORITY RECOMMENDATION:

a.

That Petitioner's naval record be corrected to show he

was no discharged on 25 June 1995 with an RE-4 reenlistment
code, but continued to serve without interruption until
30 August 1997 when he was honorably discharged with an RE-6
reenlistment code.

b.

That such adjustments as appropriate be made in his

involuntary separation pay.

C .

That any material or entries inconsistent with or

relating to the Board's recommendation be corrected, removed or

4

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
references being made a part of Petitioner's naval record.

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.

/3

ROBERT D. ZSALMAN
Recorder

ALAN E. GOLDSMITH
Acting Recorder

5. The foregoing action of the Board is submitted for your
review and action.

MAJORITY REPORT:

I

JUl_ 1 0 2001

proved  (Manpower And Reserve 

Affairs)

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