DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2
NAVY
ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No: 1757-02
14 November 2002
From: Chairman, Board for Correction of Naval Records
To:
Secretary of the Navy
Subj:
FORMER
REVIEW OF NAVAL RECORD
Ref: (a)
10
U.S.C. 1552
Encl:
(1)
(2)
DD Form 149
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 his naval record be corrected to
show that he was retired by reason of physical disability or pursuant to the Temporary Early
Retirement Authority
(TERA).
.
2. The Board, consisting of Ms. Moidel and Messrs. Bishop and Geisler reviewed
Petitioner’s allegations of error and injustice on 19 September 2002 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
of error and injustice finds as follows:
’s allegations
a. Before applying to this Board, Petitioner exhausted all administrative remedies
available under existing law and regulations within the Department of the Navy.
b. Enclosure (1) was filed in a timely manner.
c. On 5 September 1995, the Physical Evaluation Board (PEB) determined that
Petitioner was unfit for duty because of a right knee condition, bilateral knee pain, and
obstructive sleep apnea. He was released from active duty on 16 November 1995 and
transferred to the Temporary Disability Retired List. He completed 19 years, 4 months and
19 days of active duty service. He was reevaluated by the PEB on 7 November 2000. His
rating was decreased to
unfitting or ratable. On 30 November 2000, the President, Physical Evaluation Board,
directed that he be discharged by reason of physical disability, with entitlement to disability
severance pay.
20%, as the sleep apnea had improved, and was no longer considered
cl.
Petitioner contends, in effect, that he was under the impression that because of his
m ited duty status until he completed 20 years of active duty
previous period of limited duty, and the fact that he had obstructive sleep apnea, he could not
re m ain on active duty in a li
service.
In addition, he was advised that while on the TDRL, his retired pay would exceed
that which he would have received had he opted for retirement pursuant to TERA in lieu of
placement on the TDRL, and that he would qualify for TERA in the event his disability rating
was decreased below 30
had nothing to lose by electing to be transferred to the TDRL in lieu of transfer
Reserve. He subsequently learned that he could have requested retention on active duty in a
li m ited duty status until he completed 20 years of service. In addition, he was ultimately
denied military retire
Navy when his name was removed from the TDRL in
ment, because the TERA program was no longer being funded by the
% and name removed from the TDRL. Given that advice, he felt he
to the Fleet
2OOCl.
CONCLUS
ION :
Upon review and consideration of all the evidence of record, the Board concludes that had
Petitioner been properly advised, he would have requested to remain on active duty in a
li m ited duty status until he had completed 20 years of active duty service.
of his disabilities, and his excellent record of service, it is likely that his request would have
been granted. The Board concluded that in view of the unique circumstances of this case, it
would be in the interest of justice to correct Petitioner
transferred to the Fleet Reserve pursuant to the TERA at the conclusion of his tenure on the
TDRL .
Given the nature
’s record to show that he was
RECOMMENDAT
ION :
a. That Petitioner
’s naval record be corrected to show that he was not discharged by
reason of physical disability.
b. That Petitioner
’s naval record be further corrected to show that on 1 December
2000, he was transferred to the Fleet Reserve pursuant to the Temporary Early Retirement
Authority.
C. That a copy of this Report of Proceedings be filed in Petitioner
’s naval record.
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
record of the Board
’s review and deliberations, and that the foregoing is a true and complete
’s proceedings in the above entitled matter.
ROBERT D . ZSAL MAN
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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