2  NAVY  ANNEX 

WASHINGTON  DC  20370-61 0 0  

TRG 
Docket No:  1853-02 
8 August 2003 

From:  Chairman, Board for Correction of Naval Records 
To : 

DEPARTMENT OF THE  NAVY 

BOARD  FOR  CORRECTION O F  NAVAL  RECORDS 

Subj :  REVIEW OF NAVAL RECORD OF- - Ref: 

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

Secretary of the Navy 

Encl:  (1) Case Summary 

(2) Subject ' s naval record 

1.  Pursuant to the provisions of reference (a), Petitioner, a 
enlisted member in the Naval Reserve, filed an application with 
this Board requesting that his record be corrected to show 
additional active service and that additional allowances and full 
separation pay be authorized. 

2. reviewed Petitioner's allegatrons of error and injustice 

The Board, consisting of Mr. 

on 29 July 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. 

and Mr. 

Mr. 

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.  Petitioner's application was filed in a timely manner. 

c.  Petitioner reenlisted in the Navy for three years on 29 

July 1994.  On 21 February 1997, Petitioner was honorably 
discharged by reason of weight control failure and was assigned 
an RE-4 reenlistment code.  At  that time, he was paid one half 
separation pay. ,I, 

d.  Petitioner applied to the Board in 2Q00 contending that 
he had been improperly discharged.  Attached to enclosure  (1) is 
the Board's Report of Proceedings in Petitioner's case.  The 
Board considered an advisory opinion that concluded Petitioner 
was discharged in error.  The Board was aware that when a 
discharge is found to be in error, an individual is only entitled 
to service until the expiration of the enlistment in which they 

were serving at the time of discharge.  In Petitioner's case the 
. 
expiration date of his three year enlistment was 28 July 1997.  ' 
After review, the Board agreed with the comments contained in the 
advisory opini~n and concluded, in part, as follows: 

.... The Board notes that Petitioner actually failed 
the body fat composition standards but these failures 
cannot be counted as such for technical reasons. 
However, given the circumstances, the Board agrees with 
the advisory opinions that Petitioner should not have 
been discharged due to weight control failure on 21 
February 1997.  Therefore, the record should be 
corrected to show that he was not discharged on 21 
February 1997 but continued to serve on active duty 
until the expiration of his enlistment on 28 July 1987. 
His discharge on that date should be considered to be 
involuntary to prevent recoupment of the separation pay 
he already has received. 

Concerning the reenlistment code to be assigned, the 
Board concludes that since the body composition 
assessments cannot be used for discharge processing, 
they cannot be used in the assignment of the RE-4 
reenlistment code.  Accordingly, the reenlistment code 
assigned on 28 July 1997 should be RE-1.  However, 
Petitioner will have to meet weight standards before 
reenlistment will be authorized. 

Petitioner's record has been corrected to show that he was 
honorably discharged on 28 July 1997 by reason of 
"completion of required active servicen with a Separation 
Program Designator (SPD) code of JBK and an RE-1 
reenlistment code. 

e.  Petitioner enlisted in the Naval Reserve on 31 October 
2001 and has served in an excellent manner since then although 
his attempts to reenlist in the Regular Navy have been 
unsuccessful. 

f.  Petitioner is now requesting that the record be 
corrected to show that he had no break in service from 21 
February 1997 until he reenlisted in the Naval Reserve on 31 
October 2001; that he be advanced to petty officer first class, 
and that he be restored to active duty in that grade.  He 
contends, in effect that the errors made in his case were so 
egregious that This extraordinary relief is warranted.  He is 
also requesting'that the Defense Finance and Accounting Service 
(DFAS) be directed to pay him basic allowance for quarters (BAQ) 
and variable housing allowance (VHA) from 21 February 1997 until 
28 July 1997.  He is also requesting full separation pay.  He has 

provided a copy of 
effect, that he is 
the Board did not 
The letter also states that he is not entitled to BAQ and VHA 
because the Board did not issue him permanent change of station 
orders to his home of record. 

a letter from DFAS, Denver that states, in 
not entitled to full separation pay because 
specifically direct a change in the SPD code. 

CONCLUSION: 

Upon review and consideration of all the evidence of record the 
Board concludes that Petitioner's request warrants partial 
favorable action.  Concerning his request for additional service, 
advancement and restoration to active duty, the courts have 
consistently held that there is no right to reenlistment and an 
individual is only entitled to service until the end of the 
enlistment on which he/she was serving at the time of discharge. 
Therefore, the Board concludes that the Board's previous action 
provides sufficient relief and that portion of his request is 
denied. 

Concerning the pay issues, it is clear that he is entitled to the 
same pay and allowances he was receiving at the time of his 
erroneous discharge until his discharge at the expiration of his 
enlistment.  Further, his discharge entitles him to travel to his 
home of record and shipment of household goods.  The Board 
believes that these entitlements are implicit in the Board's 
decision and action by the Board is not required. 

Concerning the separation pay issue, the Board's action to show 
service until the expiration of his enlistment and an involuntary 
discharge resulted in a narrative reason for discharge of 
completion of required active service.  The SPD code associated 
with this reason for discharge is JFK and the corrected DD Form 
214 reflects that SPD code.  The Board believes that the 
corrected DD Form 214 would normally be sufficient to support the 
payment of full separation pay without further Board action. 
However, the Board's previous action might be confusing because 
it only discusses recoupment of the amount of separation pay 
already paid.  Therefore, the Board believes that the separation 
pay issue needs to be specifically addressed and concludes that 
the record should be corrected to show that he is entitled to 
full separation pay on 28 July 1997. 

RECOMMENDATION : 

a.  That Petitioner's naval record be corrected to show that he 
is entitled to full separation pay on 28 July 1997 vice the one 
half separation pay now of record. 

b.  That the remainder of his requests be denied. 

4 .   ~t 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 
Recorder 

Acting Recorder 

5.  Pursuant to the 
6 (e) of the revised 
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 

delegation of authority set out in Section 
Procedures of the Board for Correction of 

behalf of the Secretary of the Navy. -