DEPARTMENT OF THE NAVY
                    BOARD FOR CORRECTION OF NAVAL RECORDS
                                2 NAVY ANNEX

                             WASHINGTON DC 20370-5100


            BJG
                                                        Docket No: 8299-01
                                                        13 February 2003

     From:  Chairman, Board for Correction of Naval Records
     To:    Secretary of the Navy


     Subj:
            REVIEW OF NAVAL RECORD


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

     End:   (1) DD Form 149 dtd 8 Nov 01 w/attachments
            (2)   Memo for record dtd 11 Feb 03
            (3)   HQMC JAR-R memo dtd 26 Apr 02 w/encl
            (4)   Subject’s naval record

     1.     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 show that he was not transferred to the Standby Reserve -
     Inactive (Inactive Status List (ISL)) on 4 May 1999, but remained on
     the reserve active-status list continuously after that date; and that
     he was promoted to the grade of colonel, pay grade 0-6. By implication,
     he also requested that his record be corrected so that he can earn
     eligibility for retirement in the grade of colonel.

     2.     The Board, consisting of Messrs. Adams, Haney and Kim, reviewed
     Petitioner’s allegations of error and injustice on 13 February 2003,
     and pursuant to its regulations, 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
     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.  After having earned eligibility for reserve retired pay,
     Petitioner had to have a satisfactory (minimum of 50 reserve retirement
     points) anniversary year each year to retain active status in the
     Marine Corps Reserve. His anniversary year ending 31 January 1998 was
     unsatisfactory, but he received a waiver to allow him to retain active
     status. The applicable Department of Defense instruction permitted only
     one such waiver. In March 1998, the Fiscal Year (FY) 1999 Reserve
     Colonel Selection Board convened, but because of an

administrative error, it did not consider Petitioner. He initially believed
he had been considered, but not selected. It was not until October 1998
that he learned he actually had not been considered at all, but should have
been. His anniversary year ending 31 January 1999 was unsatisfactory.
Consequently, he was transferred from the Ready Reserve to the ISL on 4 May
1999. In August 1999, he was presented to a special selection board (SSB),
convened under sections 14502(e)(3) and 1552, on the basis that the FY 1999
Reserve Colonel Selection Board had erroneously failed to consider him. The
SSB selected him. His selection was approved by the President and, as shown
by enclosure (2), confirmed by the Senate. Had he been promoted, he would
have been assigned the 1 September 1998 date of rank and effective date he
would have received, had he been promoted pursuant to selection by the FY
1999 Reserve Colonel Selection Board. However, he could not be promoted,
because his transfer to the ISL had made him ineligible for promotion.

    c. In order to qualify for retirement as a colonel, Petitioner needs
three satisfactory anniversary years in that grade before 1 February 2005,
when he will have 30 years of commissioned service. He can still earn
satisfactory years for the anniversary years ending 31 January 2004 and 31
January 2005, but the year ending 31 January 2003 has already passed.

    d. In correspondence attached as enclosure (3), the Headquarters Marine
Corps office with cognizance over the subject matter of this case has
commented to the effect that Petitioner’s request has merit and warrants
favorable action. They believe that had there been no administrative error
concerning his consideration for promotion, he would have been notified of
his selection, and he could have taken steps to avoid a second
unsatisfactory year. They specifically recommend reinstating him to the
reserve active-status list, and “removing his un-waived bad years” in time
for him to earn three satisfactory years in the grade of colonel before
reaching 30 years of commissioned service.

CONCLUSION:

Upon review and consideration of all the evidence of record, and especially
in light of the contents of enclosure (3) and the Board’s findings at
paragraphs 3.b and c above, the Board directs the following corrective
action.

RECOMMENDATION:

    a. That Petitioner’s naval record be corrected, where appropriate, to
show he was not transferred to the ISL on 4 May 1999, but remained on the
reserve active-status list continuously after that date, in the same Ready
Reserve status he had before this transfer.

    b. That Petitioner’s naval record be corrected further to show that on
31 January 2002, he was promoted to the grade of colonel, United States
Marine Corps Reserve, with a date of rank and effective date of 1 September
1998, under title 10, U.S.C., sections 14502(e)(3) and 1552; and that his
lineal precedence be adjusted accordingly.


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    c. That Petitioner’s anniversary years ending 31 January 1999, 2000,
2001 and 2002 be treated as if they were satisfactory for the sole purpose
of establishing his eligibility to be retained on the reserve active-status
list, without either awarding him any reserve retirement point credit he
did not actually earn for these years; and without correcting his record to
show he received any waiver beyond the one and only waiver he was
authorized to receive, which was granted for the year ending 31 January
1998.

    d. That Petitioner’s record be corrected further by awarding him enough
non-pay drill credit to give him 50 reserve retirement points for the
anniversary year ending
31 January 2003.

    e. That any material or entries inconsistent with 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.

    f. That a copy of this Report of Proceedings be filed at an appropriate
location in Petitioners s naval record, and that another copy of this
report be returned to this Board, together with any material directed to be
removed from Petitioner’s record, for retention in a confidential file
maintained for such purpose.

4. Pursuant to Section 6(c) of the revised Procedures of the Board for
Correction of Naval Records (32 Code of Federal Regulations, Section
723.6(c)) 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             JONATHAN S. RUSKIN
Recorder                                                       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 authority of reference (a), has been approved by
the Board on behalf of the Secretary of the Navy.





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                                                        11 February 2003


MEMO FOR RECORD

Re: Case of   USMCR,

Today, MMPR advised that promotion to colonel was confirmed by the Senate
on 29 Oct 99.



                                  JONATHAN S. RUSKIN
                                  Head, Performance Section



































                           DEPARTMENT OF THE NAVY
                   HEADQUARTERS UNITED STATES MARINE CORPS
      2 NAVY ANNEX     IN REPLY REFER
      WASHINGTON, DC 20380-1775   5800
            JAR—R/20366                 26 Apr 02

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS

Subj: BCNR APPLICATION ICO LTCOL  USMCR
Ref:   (a)   LtCol  Form 149 of 8 Nov 01
         (b)  DoD Inst 1200.15 of 18 Sep 97
         (c)     PHONCON HQMC (JAR-R) LtCol     /MCRSC (G1-TFB-
            IDRS)   of 25 Mar 02
      (d)   R.  ltr 1402 NIY4PR-1 of 24 Sep 99

                              -mail of 8 Apr 02

1.    Issue. You asked us for an Advisory Opinion on reference (a),
Lieutenant Colonel BCNR request to be returned to the Active Status List
(ASL), thereby making him eligible for promotion to Colonel in the U.S.
Marine Corps Reserve.

2.    Opinion. Reference (b) precludes the U.S. Marine Corps from
transferring Lieutenant Colonel o the ASL. However, it would not be
inappropriate under the circumstances for BCNR to favorably consider and
grant relief.

3.    Analysis
      a.    Lieutenant Colonel chronology of events (enclosure (1))

         (1)     Active [Status List] - Jul 82 to Jan 98.
         (2)     Stopped drilling Jan 98.
         (3)     Mar 98 - Went before FY99 USMCR Colonel’s Promotion Board,
              but was apparently passed.
         (4)     Oct 98 - Informed by HQMC that due to administrative error
              his Colonel’s promotion package had been misplaced and not
              presented to the Promotion Board.
         (5)     Mar 99 - Informed by HQMC he either had to retire or
              request transfer to Inactive Status List (ISL). Requested
              transfer to ISL.
         (6)     Apr 99 - Granted Special Selection Board (SSB)







Subj: BCNR APPLICATION ICO LTCOL

         (7)     Aug 99 - SSB convenes.
         (8)     Sep 99 — Notified of selection to Colonel, but ineligible
              for promotion due to status on ISL.

     b.     Marine Corps Reserve Support Command (MCRSC) chronology of
events (reference (c))

                             ccumulates 22 continuous good
              Reserve years for retirement purposes between 1 Feb 75 and 31
              Jan 97.
         (2)     LtCol Porth becomes retirement eligible in 1995. He then
              needs 50 retirement points per year to remain on the ASL, per
              reference (b)
                                ives a one-time waiver of the DoD 50
              retirement point requirement (for anniversary year 1 Feb 97 to
              31 Jan 98) on 12 Aug 98.
         (4) LtCol     tified he would be dropped to the ISL if he did not
              voluntarily request retirement (certified letter dated 10 Mar
              99) The letter was signed for at LtCol residence on 30 Mar 99.
         (5)     MCRSC did not receive a retirement request and dropped o
              the ISL on 4 May 99.

     c.     Despite some discrepancies between Lieutenant Colonel d MCRSC’s
chronology, the relevant facts are generally established. Lieutenant Colone
stopped actively participating (failed to achieve 50 retirement points
during an anniversary year) in Jan 97. Lieutenant Colon was not selected by
the FY99 USMC Reserve Colonel Promotion Selection Board (Mar 98) Lieutenant
Colon id not resume active participation or request transfer to the ASL of
the Standby Reserve after initially failing in selection to Colonel.
      d.    Lieutenant Colone     as granted a one-time
waiver of the 50-point DoD participation requirement for the anniversary
year 1 Feb 97 to 31 Jan 98. He was not eligible for a subsequent waiver,
and in accordance with reference (b) was transferred to the ISL on 4 May
99. There is no administrative procedure for transferring a retirement
eligible servicemember from the ISL to the ASL under the facts of this
case. A servicemember on the ISL is ineligible for promotion.




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Subj: BCNR APPL±CATION ICO LTCOL
                                    USMCR

     e.     In Oct 98 the U.S. Marine Corps notified Lieutenant hat due to
                 administrative error his
promotion package had been misplaced and not presented to the Board. He was
given an opportunity to request a SSB, which was granted in Apr 99. The SSB
met in Aug 99. In the letter notifying him of his selection to Colonel,
Lieutenant Colon   also informed, his ISL status
precluded his promotion.     This letter suggested he request
BCNR to reinstate him on the Reserve ASL (reference (d)) .~

     f.     It is clear, Lieutenant Colonel an be promoted if reinstated to
the ASL. Had Lieutenant Colonel
          ackage not been lost he would have been notified of selection and
promoted before he incurred his second bad year, (which caused his
mandatory drop to the ISL). The fact Lieutenant Colone s left off the
selection list at a time he would ot erwise have received information and
been able to effectively act on the option of transferring to the ASI~J of
the Standby Reserve, weighs equitably in his favor towards reinstatement to
the ASL.2

4.    Recommendation. BCNR should favorably consider the equities of
reinstating Lieutenant Colon the ASL, and removing his un-waived bad years
of participation, in time for him to obtain three years service in grade
before reaching 30 years commissioned service.







1 This is the correct procedure. The U.S. Marine Corps appropriately

dropped him (per reference (b)) to the ISL for lack of participation over a
two anniversary year period. Lieutenant Colon id not request transfer to
the ASL of the Standby Reserve, and MCRSC properly dropped Lieutenant
Colone~ - compliance with DoD requirements. Had Lieutenant Colonel.
ansferred to the ASL of the Standby Reserve before incurring his second bad
year he would have been eligible for promotion when selected to Colonel.

2 Reinstatement to the ASL without eliminating his un-waived bad years
would not significantly improve Lieutenant Colone predicament. If
reinstated to the ASL for purposes of promotion only, his cumulative bad
years will again require the U.S. Marine Corps (per reference (b)) to drop
him to the ISL, before he accumulates enough time (three good retirement
years) to retire in grade. In addition, to retire in Colonel’s grade he
must be reinstated at least three years before reaching 30 years
commissioned service.


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