DEPARTMENT OF THE NAV
Y
BOARD FOR CORRECTION OF NAVAL RECORD
S
2 NAVY ANNE
X
WASHINGTON DC
20370-5100
TRG
Docket No:
26 December 2001
8264-00
This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10 of the United
States Code section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 18 December 2001.
Your allegations of error and
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.
After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.
In your application, you are requesting that active duty for
special work
(ADSW) orders for the period 1 August 1999 to 31
January 2000 be reinstated as originally written.
were terminated on 30 September 1999 to preclude you from
reaching 18 years of active duty and eligibility for sanctuary
under the provisions of Title 10 U.S.C. 12686.
reached sanctuary and requested retention, you could not have
been involuntarily released until you qualified for active duty
retirement.
If you had
Those orders
After a 19 day break in service,
expire on 31 December 1999.
required to sign a waiver of the sanctuary provisions.
signed the waiver believing that you did not have 18 years of
active duty, you did not contest your release from active duty on
31 December 1999.
you were issued ADSW orders to
However, in these orders you were
Since you
Subsequently, you were informed that an error in your service
computation had been made and that you actually had 18 years of
active service.
Apparently in early 2000, the Staff Judge
Advocate to the Commandant of the Marine Corps (SJA to CMC) noted
that the law only authorized the Secretary of the Navy to require
Since that authority
a waiver of the right to claim sanctuary.
had not been delegated, it was opined that implementation of that
authority by Headquarters Marine Corps might be legally
unenforceable.
On 5 October 2000 the SJA to CMC noted that you had accumulated
18 years, 1 month and 6 days of active service and opined that
you did not sign a valid waiver of sanctuary protection for the
ADSW period from 18 October to 31 December 1999.
opined that since you had accepted the break in service, a
shortened period of ADSW, signed a sanctuary waiver provision,
and voluntarily accepted release from active duty that you were
The SJA recommended denial of your
not eligible for sanctuary.
request for sanctuary unless your skills and expertise warranted
recalling you for approximately two years of active duty, thus
making you eligible for active duty retirement.
It was further
In a letter to you, dated 16 November 2000, the Director, Reserve
informed you that your request for orders
Affairs Division, HQMC,
had been denied and informed you that errors had been made in
The errors included counting the
your service computation.
entire period of your initial ADSW orders from 1 August 1999 to
31 January 2000 as a continuous period of active duty. As
indicated, there was a 19 day break in service in that period and
the orders ended on 31 December 1999 instead of 31 January 2000,
a total of 50 days.
accumulated 17 years, 10 months and 2 days of active service vice
The Board
the 18 years, 1 month and 6 days previously reported.
noted that you have not disputed this computation of your service
The new computation revealed that you had
The Board believed that it may have been within the discretion of
CMC to modify orders in cases such as yours to preclude an
However, this issue is moot
individual from reaching sanctuary.
because even if these periods, totaling 50 days, are taken into
account, you would still not have 18 years of active duty.
Therefore, the Board concluded that the actions taken by HQMC
were proper and you are not entitled to sanctuary.
r
Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon request.
n&es and
The
It is regretted that the circumstances of your case are such that
You are entitled to have the
favorable action cannot be taken.
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard, it is important to
presumption of regularity attaches to all official records.
keepLin mind that a
'2
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.
Sincerely,
W. DEAN PFEIFFER
Executive Director
3
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