DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0 TRG

Docket No:
3 January 2002

873-01

From:
To:

Subj:

Ref:

Encl:

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

RECORD OF

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

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

Pursuant to the provisions of reference (a), Petitioner, a
1.
commissioned officer in the United States Marine Corps Reserve
filed an application with this Board requesting that his record
be corrected to show that he was retained on active duty until he
qualified for retirement, vice being released from active duty on
24 August 1999.

The Board, consisting of Mr. Pfeiffer, Mr. Whitener and Mr.

2.
McPartlin, reviewed Petitioner's allegations of error and
injustice on 18 December 2001  
determined that the corrective action indicated below should be
taken on the available evidence of record.
considered by the Board consisted of the enclosures, naval
records, and applicable statutes,

and,,pursuant  to its regulations,

regulations and policies.

Documentary material

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
regulations within the Department of the Navy.

law and

b.

Petitioner's application was filed in a

timely manner.

C .

Petitioner, a LTCOL (O-5) in the Marine

Corps Reserve,
was issued Active Duty for Special Work (ADSW) orders commencing
These orders
on 19 June 1999 and ending on 31 December 1999.
were erroneously issued without the required waiver provisions,
limiting the right to claim the 18-year sanctuary provided by 10
Subsequently, Headquarters Marine Corps (HQMC)
U.S.C. 12686(b).
discovered that as of 19 June 1999, Petitioner had accumulated 17
Therefore, the
years, 10 months and 4 days of active service.
ADSW orders were modified to include the waiver of sanctuary
Since he refused
protection, which Petitioner refused to sign.
to sign the waiver, the ADSW orders were terminated effective 24
August 1999.

d.

When Petitioner learned that his orders were being
terminated, he pointed out that his Career Retirement Credit
Report (CRCR) was incorrect in that it did not include an
approximately 80 day period of active duty training he served
while assigned to the Platoon Leaders Course prior to being
commissioned in 1977.
years of active duty, he requested sanctuary and retention on
active duty to qualify for retirement.
Petitioner was released from active duty on 24 August 1999.

Since this 80 day period put him over 18

However, as indicated,

e.

On 2 March 2000 HQMC informed a Congressman that since
Petitioner had already been released from active duty, he could
no longer be granted sanctuary since he was serving in the
Individual Ready Reserve (IRR).
apply to this Board if he believed that he was erroneously denied
the statutory 18 year sanctuary.

HQMC recommended that Petitioner

f.

Attached to enclosure (1) are three advisory opinions

On 19 March 2001, the Separation and Retirement

Since Petitioner did not consent to release from active.

from HQMC.
Branch (MMSR) provided a CRCR which shows over 18 years of active
duty.
duty MMSR believes that he should have been retained on active
duty until he became eligible for a regular retirement.
MMSR deferred to the Staff Judge Advocate (SJA) and Reserve
Affairs Policy division (RAM) for further comment.

However,

g.

In an advisory opinion, dated 13 April 2001, RAM stated,

in part, as follows:

. 

First those orders, upon which he

. As set forth in the enclosures, there are

. 
circumstances surrounding (Petitioner's) orders . . . .
that may bear on the applicability of (Petitioner's)
claim of sanctuary.
relies for his sanctuary claim, did not comply with
existing Marine Corps policy.
contain the 10 U.S.C.  
.
. . . 
Second (Petitioner's) ability to immediately point out
that 80 days of Platoon Leaders Class (PLC) active duty
training from 22 years earlier were not included in his
Career Retirement Credit Report (CRCR) causes one to
pause, especially when coupled with the lack of the
required sanctuary waiver.
question as to whether (Petitioner's) own acts and
conduct contributed to or caused the circumstances
giving rise to this sanctuary claim.

Those orders did not
5 12688(b) sanctuary waiver  

Consequently, there is a

. 

. 

. The issues of (1) whether (Petitioner)

deliberately maneuvered himself into a position of
sanctuary 
. whether his claim of sanctuary is

. . . . 

2

vitiated by those acts are not under the cognizance of
this Division.
for comment on and resolution of those issues.

We defer to the Staff Judge Advocate

. 

. 

. If the Staff Judge Advocate should determine
that (Petitioner) is entitled to sanctuary as a matter
of law, then we request return of this matter to
comment on (Petitioner's) request for retirement
credit.
that (Petitioner) is not entitled to sanctuary as a
matter of law, then we request his petition be denied.

If the Staff Judge Advocate should determine

h.

Subsequently, the SJA to the Commandant of the Marine
Corps has provided an advisory opinion which analyzes the issues
as follows:

. 

. 

On the date he was released from active

. (1) Petitioner has met the requirements for

. 
sanctuary.
duty, he had over 18 years service, and should not have
been ordered off active service. . . . Reservists on
active duty who are within 2 years of becoming eligible
for retired pay
%tay not be involuntarily released from
active duty before he becomes eligible for that pay,
unless the release is approved by the Secretary."
There is no evidence the Secretary approved a release
in his case.

(2) Absent evidence that Petitioner somehow

defrauded the Marine Corps,
there is no provision in
law or regulation that prohibits counting his 78 days
of PLC training under these circumstances.
pertinent facts are simply that Petitioner served over
18 years active duty.
correspondence indicates a variety of suggestions and
innuendo that Petitioner "sandbagged" the Marine Corps
with the late revelation that he had 78 days of active
service, no investigation ever made that case.

Although the attached

The

(3) In fact, Petitioner's command and higher

headquarters had numerous opportunities to fully
investigate this matter, but apparently chose not to do
so.
perfunctorily told to petition the Board for Correction
of Naval Record if he disagreed with the Marine Corps
findings. . . . . .

Instead, he was released from active duty and

(4) Petitioner's alleged failure to  

"certify" his

CRCR is not a bar to sanctuary.
regulations . . . . require Reservists to certify and
correct inaccuracies in their CRCR, the Marine Corps

While Reserve

3

has been unable to show whether Petitioner did or did
Again this
not do this in the annual audit process.
was not investigated, and even if it was, we doubt
whether a U. S. Federal Court would place the onus of
record keeping  
upoy the Petitioner, vice that of the
government agency.

(5) The validity of the waiver provision does not
Sanctuary was already attained by

apply in this case.
the time Petitioner re-signed his orders with the
waiver provision.*

(6) In sum, had the Marine Corps kept accurate

Interestingly, (Petitioner) was
- and not reinstated even

record of (Petitioner's) PLC active duty time, his
records would have clearly shown he entered sanctuary
before he was threatened with termination of his orders
on 17 August 1999.
released from active duty  
after the PLC active duty time error was verified. At
that juncture, it seems there was an obligation to
pursue one of two courses of action:
fully investigate for fraud.
Instead, Petitioner was forced to leave active service
- when the facts more than likely indicate he should
have been on the Marine Corps active duty list for the
past 2 years.

reinstatement or
occurred.3

Neither 

the Government's case would be

Second, he was ordered to ADSW for 196 days,

' Should this go to court,
hindered by numerous administrative missteps.
was ordered to ADSW without the benefits of reviewing his entire
service record.
thus precluding 
Third, there was no waiver provision in his orders.
the error was corrected the waiver was reinserted and the orders
changed to 180 days.
in general, is questionable absent a Secretarial delegation. In
sum, given the Government's many and varied missteps, it would be
difficult for them to cite  
pasis to deny relief.

a.pplicability  of the statutory waiver provisions.
Fourth, when

Finally, the legality of waiver provisions,

. Petitioner's misfeasance as a

First, Petitioner

(Regulations) permit Reservists to waive sanctuary claims.

that the Secretary has not delegated waiver

Doing this requires insertion of the waiver into ADSW orders of
Reservists who have over 17 years of active duty.
however, . . .
authority to the U. S. Marine Corps  
whether waivers (as presently implemented) are enforceable when
Since Petitioner already reached
tested by a Federal Court.
sanctuary on 17 August, we will not comment on the sufficiency of
the modified ADSW orders (that included a waiver provision).
3 In December 1999, we recommended investigating this case.

- which raises questions . . . .

We note,

. . 

4

(7) Under these circumstances, it would be unjust

to force (Petitioner) to return to active duty for
approximately 2 years to earn an active duty 20-year
retirement, since that amount of time has already
expired from the date of his erroneous release on 24
August 1999.

. . . . .

The SJA to CMC concludes that Petitioner was entitled to
sanctuary and recommends that the Board grant active duty credit,
for retirement purposes, from 24 August 1999 through the date
Petitioner was first eligible for an active duty 20-year
retirement.

i.

After reviewing the foregoing advisory opinion, the

Reserve Affairs Division requested that the Board defer its
decision until an investigation could be conducted into the
circumstances surrounding (Petitioner's) submission of his 22
year old Platoon Leaders Class orders to substantiate his
sanctuary claim.

CONCLUSION:

The Board adopts the analysis and recommendation made in

Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action.
the advisory opinion from the SJA to CMC.
Further, the Board
especially agrees with that portion of this advisory opinion to
the effect that any investigation should have been conducted at
an earlier date.
its consideration of the case, as recommended by RAM.

Therefore, the Board declines to further defer

Therefore, the Board concludes that Petitioner's record should be
corrected to show that he was not released from active duty on 24
August 1999 but continued to serve until the date he first became
eligible for a 20 year active duty retirement.
estimated to be 1 July 2001, but the actual date will be computed
by HQMC and adjusted as appropriate.

This date is

That this Report of Proceedings be filed in Petitioner's naval
record so that all future reviewers will understand his retired
status.

RECOMMENDATION:

.

That Petitioner's naval record be corrected to show that

te was not released from active duty on 22 August 1999 but
continued to serve on active duty until the earliest date he
qualified for 20 year active duty retirement.
retirement will be computed by HQMC.

The actual date of

5

That this Report of Proceedings be filed in Petitioner's

b.
naval record.

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

4.
review and deliberations, and that the foregoing is a true and
complete record of the Board's proceedings in the above
matter.

entitled

_- 

-

ROBERT D. ZSALMAN
Recorder

ALAN E. 
Acting Recorder

-G&D&H

5.
Pursuant to the delegation of
6(e) of the revised Procedures of
Naval Records (32 Code of Federal
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.

authority set out in Section
the Board for Correction of
Regulations, Section 723.6(e))

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