DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

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2 NAVY ANNE

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WASHINGTON DC 20370-510

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TRG
Docket No: 2277-00
20 February 2001

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

RECORD 0

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

(1) DD Form 149 w/attachments
(2) Case Summary
(3) Subject's naval record

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From:
To:

Subj:

Ref:

Encl:

Pursuant to the provisions of reference (a), Petitioner, a

1.
former enlisted member of the United States Navy filed enclosure
(1) with this Board requesting, in effect, that she be reinstated
in the Navy to qualify for retirement.

The Board, consisting of Mr. Zsalman, Mr. Rothlein and Ms.

2.
Hardbower, reviewed Petitioner's allegations of error and
injustice on 30 January 2001 and, pursuant to its regulations,
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, regulations and policies.
3.
to Petitioner's allegations of error and injustice, finds as
follows:

The Board, having reviewed all the facts of record pertaining

Documentary material

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 .

Petitioner first enlisted in the Navy on 3 January 1979.

During the period 15 February 1980 to 12 June 1985 she received
nonjudicial punishment (NJP) on five occasions.
Her offenses
were the theft of three eye shadows valued at about $4.00,
sleeping on watch, dereliction of duty, use of provoking words
and several instances of disobedience.

d.

Following the 12 June 1985 NJP, Petitioner served over
seven years without any disciplinary infractions.
During this
period, on 7 June 1991 she reenlisted in the Navy for four years
and on 16 November 1991 she was advanced to  
December 1992 she received her sixth NJP for dereliction of duty.
The punishment imposed included forfeitures of pay and a

RMl (E-6).

On 1

suspended reduction in rate.

e.

On 10 May 1993 Petitioner was issued a letter of

substandard performance in which she was informed that she could
not reenlist or extend her enlistment without the "specific prior
In the performance
approval of the Chief of Naval Personnel".
evaluation for the period 1 December 1993 to 30 April 1994, she
was assigned an adverse mark of 2.8 in reliability and was not
recommended for advancement or retention in the Navy.

f.

On 30 November 1994 after considering the foregoing

record and a favorable recommendation from Petitioner's command,
the Chief of Naval Personnel granted authority to extend her
enlistment for 21 months.
required to extend her enlistment beyond March 1997 and that she
would remain on probation.
On 20 January 1995 she extended her
enlistment for 21 months.

She was warned that prior approval was

g.

On 28 August 1996 Petitioner received her seventh NJP

for an unauthorized absence of about three days and making a
false official statement, and was awarded a suspended reduction
On 28 October 1996, Petitioner was denied reenlistment
in rate.
because of her  
behavior".
reenlistment code.
January 1997.

It was also directed that she be assigned an RE-4

"long history of substandard performance and

She completed 18 years of active service on 2

h.

On 4 February 1997, Petitioner requested a further

extension, or reenlistment or retirement under the provisions of
the Temporary Early Retirement Authority  
Subsequently,
the Bureau of Naval Personnel recommended as follows that the
request be disapproved:

(TERA).

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. . . she lacks the leadership qualities required of a

serious petty officer and demonstrates no potential for
further service.
until final action could be taken.

. . . She was extended for 30 days

It is hard not recommending reenlistment for a petty
officer with over 18 years of service.
has an obligation to meet the Navy half-way.
had to do was show up for work and do her job and
everybody in the chain of  
Since she is unable or unwilling to meet that minimal
responsibility, the Navy should not be obligated to
retain her to retirement eligibility.

command would be on her side.

However, (she)
All she

2

On 28 March 1997, the Deputy Chief of Naval Operations denied her
request for further service or retirement under TERA.

i.

Following a period of medical hold, surgery and

convalescent leave, Petitioner was honorably discharged on 9 May
At that time, she was paid separation pay of $22,440 and
1997.
The DD Form 214 shows
was assigned an RE-4 reenlistment code.
that as of that date she had completed 18 years, 4 months and 7
days of active service.

_-

j.

Petitioner alleges in her application that the Navy

failed to follow the law in that she was discharged in violation
of Title 10 U.S.C. 1176(a).
servicemembers who have completed 18 years of service.

This law requires retention of

k.

The Board received an advisory opinion in a similar case
The advisory

from the Deputy Assistant Judge Advocate General.
opinion states, in part, as follows:

. 

Additionally,

. the decision to reenlist a service member is

. 
discretionary, unless such discretion has been
constrained by statute or regulation.
even where an applicable statute or regulation does not
compel reenlistment there may be a bar to separation.
Such is the case with respect to enlisted members who
are within 2 years of qualifying for transfer to the
Fleet Reserve.
if the term of enlistment expires for an enlisted
member who is within 2 years of qualifying for transfer
to the Fleet Reserve and if such a member is denied
reenlistment, the member shall not be discharged, but
"shall be retained on active duty until the member is
qualified for retirement or transfer to the Fleet
Reserve."

Title 10 U.S.C.  

1176(a).provides  that

§ 

The advisory opinion concludes as follows:

5 1176 and OPNAV Instruction  

Where a member is within 2 years of qualifying for
transfer to the Fleet Reserve and the member is denied
the opportunity to reenlist or extend his or her
enlistment, retention on active duty is mandated by  
U.S.C. 
Petitioner was within 2 months of qualifying for
transfer to the Fleet Reserve when, after his request
for extension of enlistment was denied, he was
discharged.
Thus, because Petitioner's retention on active
law.
duty was compelled by statute and regulations, relief

Such discharge was contrary to applicable

1160.5C.

I

IO

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is warranted; however, such relief should not provide
an excessive benefit to Petitioner through compensation
for service that was neither performed nor obligated.
Accordingly, Petitioner should be allowed to return to
active duty in order to complete that active service
required for transfer to the Fleet Reserve.

CONCLUSION:

Given the circumstances of this case, the  

Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action.
concludes that the provisions of 10 U.S.C.  
to this case, and Petitioner should have been retained on active
duty until eligible to transfer to the Fleet Reserve on
completion of 20 years of service.
recommendation made in the advisory opinion that the Petitioner
in that case be required to return to active duty to complete
service to retirement.
Petitioner had been retained on active duty as required by law,
Since an
she would have completed her service and been retired.
error occurred, the Board believes the record should be corrected
as if she was never discharged.
action taken in the case for which the advisory opinion was
obtained.

This is consistent with the

However, the Board notes 

.that if

Board-

§ 1176 were applicable

The Board notes the

Therefore, the record should be corrected to show that Petitioner
was not discharged on 9 May 1997 but continued to serve on active
duty until she transferred to the Fleet Reserve at the earliest
possible date after completion of 20 years  of active service.
This date is believed to be 1 February 1999 but the actual date
will be as determined by the Navy Personnel Command.

The Board further concludes that this Report of Proceedings
should be filed in Petitioner's naval record so that all future
reviewers will understand her status in the Fleet Reserve.

RECOMMENDATION:

That Petitioner's naval record be corrected to show that

a.
that she was not discharged on 9 May 1997 but continued to serve
on active duty until she transferred to the Fleet Reserve  
earliest possible date after completion of 20 years of active
service.

_at the

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

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complete record of the Board's proceedings in the above entitled
matter.

ROBERT D. ZSALMAN
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
has been approved by the Board on
authority of reference (a),
behalf of the Secretary of the Navy.

Executive Di

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