DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

ELP
Docket No. 4617-01
3 June 2002

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

(a) 10 U.S.C.1552

(1) Case Summary
(2) Subject's Naval Record

From:
To:

Subj:

Ref:

Encl:

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

1.
retired enlisted member of the Navy,
requesting, in effect,
he was advanced to petty officer first class  
his transfer to the Retired List.

that the record be corrected to show that

applied to this Board

(GMGl; E-6) upon

The Board, consisting of Messrs. Milner, Hogue, and Cooper,

2.
reviewed Petitioner's allegations of error and injustice on
29 May 2002 and, pursuant to its regulations, determined that
the partial 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.

Documentary material

The Board, having reviewed all the facts of record

3.
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.

Although it appears that Petitioner's application to

the Board was not filed in a timely manner, it is in the
interest of justice to waive the statute of limitations and
review the application on its merits.

i

C .

Petitioner reenlisted in the Navy on 30 April 1984 for

four years as a gunner's mate (guns) second class (GMG2; E-5).
At the time of his reenlistment, he completed nearly 18 years of
prior active service which included service in Vietnam with the
After serving well and without disciplinary incident for
Army.
five years as a GMG2,
1984.
months on 4 April 1988.

He extended his enlistment for an additional period of 12

Petitioner was advanced to  

GMGl on 16 June

d.

Petitioner served without incident until 11 January

1989 when he received a nonjudicial punishment for communicating
a bomb hoax on board USS ARCADIA, assaulting two crewmembers,
and breaching the peace.
Punishment imposed consisted of a
reduction in rate to GMG2 and 45 days of restriction and extra
duty.

e.

On 14 February 1989 Petitioner was notified that

administrative discharge action had been initiated by reason of
misconduct due to commission of a serious office.
advised of his procedural rights and elected to present his case
to an administrative discharge board (ADB).
He also requested
that he be transferred to the Fleet Reserve, with the
understanding that a reduction to GMG3 (E-4) could be directed
prior to transfer.

He was

On 10 March 1989 Petitioner appeared before an ADB with
The ADB found that Petitioner had committed misconduct

f.
counsel.
due to commission of a serious offense and recommended that he
be separated with a general discharge.
recommended that he be transferred to the Fleet Reserve in his
current rate of GMG2.
The commanding officer (CO) concurred
with the findings and recommendation of the ADB and recommended
that Petitioner's discharge be held in abeyance pending his
transfer to the Fleet Reserve in his current pay grade.

The ADB further

Q*

Since Petitioner had over 18 years of service, the

Command (NMPC 83) forwarded

NMPC recommended suspension of the

Commander, Naval Military Personnel  
the case to the Chief of Naval Operations  
action on 10 April 1989.
discharge pending transfer to the Fleet Reserve, with a
reduction in rate to  
separation with a general discharge by reason of misconduct but
held execution of the discharge in abeyance subject to
Petitioner's transfer to the Fleet Reserve as a GMG3.
Petitioner was honorably transferred to the Fleet Reserve as a
GMG3 on 31 May 1989.

On 18 April 1989 CNO approved

At the time of transfer, he had completed
.

(CNO), for final

GMG3.

2

23 years, 2 months, and 14 days of active service.
years of this service was aboard ship.

About 16

h.

Petitioner's Fleet Reserve Transfer Authorization

On that date, it appears that in accordance with 10

stated that he would complete 30 years of service on
1996.
U.S.C. 6331, he was transferred to the Retired List upon
completion of 30 years of service on active duty and in the
Fleet Reserve.
on the Retired List to the highest grade in which he served
satisfactorily, Petitioner was not advanced in grade beyond
GMG3, the rate at which he was transferred to the Fleet Reserve.

6334 authorized advancement

Although 10 U.S.C.

  13 February

i.

At enclosure (1) is an advisory opinion from the

Enlisted Retirements Branch within the Navy Personnel Command
(Pers-823) which states that a determination was made that
Petitioner's service as a  
advancement on the Retired List in that grade was not
authorized.

GMGl was not satisfactory, and

j.

Subsequently, the Deputy Assistant Judge Advocate
General (JAG) for Administrative Law was asked whether it was
proper to transfer Petitioner to the Fleet Reserve in the rate
of GMG3 vice GMG2 given his satisfactory service in that rate
and, if so, whether CNO could disapprove the recommendation of
the ADB to transfer him in the higher rate.
whether Petitioner should be advanced to GMG2 on the Retired
List.
follows:

In an advisory opinion of 19 May 2002 JAG responded as

JAG was also asked

. 

. (SECNAVINST 

to perform a subjective

1910.4A)  allows the (ADB), in considering
. 
its recommendation regarding pay grade upon transfer to the
Fleet Reserve/Retired List,
balancing test on competing factors such as the "nature and
severity of the misconduct."
"performance evaluations and
other portions of the service record bearing on
performance..." and
relationship to the time of the misconduct."
that (Petitioner) should be processed for discharge due to
commission of a serious offense.
Under the provisions of
paragraph 
1910_4A), it
was reasonable for the ADB to recommend (Petitioner) be
transferred to the Fleet Reserve in his current grade. In
accordance with the provisions of (DOD Instruction
1332.14),
Naval Military  

eersonnel Manual [MILPERSMAN]), it was

9k of enclosure (6) to (SECNAVINST  

"time in current grade and its

1910.4A), and Article 3610200 of (the

(SECNAVINST 

The ADB found

3

permissible and reasonable for the separation authority,
CNO, to direct (Petitioner's) transfer to the Fleet Reserve
in the next inferior grade.
contrary recommendation of the ADB and (Petitioner's)
periods of satisfactory service in the grade of GMG2.

This is true despite the

. 

IRR...."

. (SECNAVINST 

"[clhange the Board's

1910.4A)  provides authority for the

. 
separation authority to  
recommendation concerning transfer to the  
This
provision can be reasonably interpreted to afford CNO the
authority to disapprove a recommendation by an ADB to
transfer a service member to the Fleet Reserve in their
3640370.lb(4)(b)2  of (the
current pay grade.
MILPERSMAN) clarified this authority by stating that CNO
may "disapprove the board's recommendation to retain the
respondent's current pay grade and reduce the respondent to
the next inferior grade prior to transfer to the Fleet
Reserve/Retired 
CNO acting as the separation
authority, had the authority under both regulations to
direct (Petitioner) be transferred to the Fleet Reserve in
the next inferior grade.

Article 

List."

Navy."

"to the highest grade in which he served on

(10 U.S.C. 6334) allows service members transferred to the
Fleet Reserve after 4 December 1987, whose Active and
Reserve service totals 30 years, to be advanced on the
retired list
active duty satisfactorily, as determined by the Secretary
of the 
(The Pers-823 advisory opinion) opines that
(Petitioner) did not serve satisfactorily in the grade of
GMGl (E-6).
Thus it was reasonable and proper for NPC to
recommend against the advancement of Petitioner on the
retired list based on the specifics of his request.
(the
opinion) however, makes no comment regarding (Petitioner's)
GMG2
satisfactory service on active duty in the grade of  
(E-S)... Under the provisions of (10 U.S.C.  
6334), (Peti-
tioner) can be advanced on the retired list to that grade.

k. Subparagraphs  

9h and 

9i of enclosure (6) to SECNAVINST

1910.4A stated that an ADB would make recommendations on the
issues of retention or separation and characterization of
service.
further issues that the ADB was required to consider:

9k stated as follows concerning

Subparagraph 

9j and 

(II+.

Recommendation on Transfer to the Ready Reserve

The (ADB) shall recommend whether the respondent

h

4

. 

. In recommending retention in the Ready Reserve, the

should be retained in the Ready Reserve as a mobilization
asset to fulfill the respondent's total service obligation.
. 
(ADB) should consider investment in the respondent's
training, probable availability for future recall and
potential for useful service under conditions of full
mobilization.
Reserve applies to cases involving separation from active
duty. 

The requirement of transfer to the Ready

.. 

. 

. Recommendation on Payqrade Upon transfer to the Fleet

. 
Reserve.
When the respondent is eligible for transfer to
the Fleet Reserve/Retired List and the  
(ADB) recommends
separation, the (ADB) shall make a further recommendation
on whether the transfer should be in the  
held or in the next inferior paygrade.
recommendation the (ADB) will consider the following
factors:

paygrade  currently
In making its

. 

. Nature and severity of the misconduct, and its

. 
relationship to and effect upon the performance of military
duties.

. 

Iill performance evaluations and other portions of the

. 
service record bearing on performance in the current
paygrade  

. 

. 

.

.

. 

. Time in 

. 
time of the misconduct.

current.grade  and its relationship to the

. Other relevant matters presented by the record or the

. 

. 
respondent.

1.

Paragraph 11 of enclosure (6) to SECNAVINST  

Subparagraph lla stated that if the ADB finds evidence

1910.4A
authorized the separation authority to take final action on an
ADB.
supporting the reason for separation and recommends separation,
(ADB's) findings and
the separation authority may
recommendation. 
separation authority to disapprove the recommendation for
separation and retain the respondent, approve or disapprove
suspension of a recommended separation despite the
recommendation of the ADB on this issue, or direct a more
favorable characterization of service than that recommended by
the ADB.
"change the 

(ADB's) 'Recommendation concerning transfer to the

The separation authority was also authorized to

. ” This subparagraph also authorized the

"approve the  

. 

5

The comparable provision of the MILPERSMAN, Article

IRR."
3640370, also authorized the separation authority to disapprove
the 
Reserve in his current paygrade,
inferior paygrade.

ADB's recommendation to transfer the respondent to the Fleet
and direct transfer in the next

m.

Federal courts have held that if two regulations

contain conflicting guidance,
source will prevail, unless the lower source provides greater
rights for the individual.
United States v. Lopez, 35 M.J. 39
(CMA 1992); United States v. Davis, 47.   M.J. 484, 485 (1998);
Gilchrist v. United States, 33 Fed. Cl. 791, 800-01 (1995).

the directive from the higher

CONCLUSION:

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants partial
favorable action in the form of a correction to the record to
show that he was transferred to the Fleet Reserve in the rate of
GMG2 instead of GMG3.
In this regard, the Board concludes that
his transfer in the latter rate was both unfair and improper.

After his promotion

"got it right" when they

Although at first blush,

9k of enclosure (6) of SECNAVINST  

After being reduced to GMG2, Petitioner served in that

GMGl, he continued to serve well until the NJP of 11 January

The record clearly reflects that from 1979 to 1984, Petitioner
served well and without incident as a GMG2.
to 
1989.
rate without incident until his transfer to the Fleet Reserve.
Based on these facts, and applying the standards set forth in
subparagraph 
1910.4A, the
Board concludes that the ADB and the CO  
recommended Petitioner's transfer to the Fleet Reserve as a
GMG2.
Petitioner's misconduct appears
to have been severe, the command chose to dispose of it at NJP,
a forum reserved for minor offenses.
Petitioner's performance
evaluations as a GMG2 were at least satisfactory and, for the
most part, excellent.
They were sufficiently meritorious to
warrant his selection for  
Petitioner's ADB, he had more than five years of service as a
GMG2, and his misconduct was not committed while serving in that
rate.
Additionally, he had over 23 years of active service, of
which 16 years were spent at sea,
and he served his country in
Vietnam during his prior Army service.
cannot ignore the fact that at the NJP of 11 January 1989,
Petitioner was reduced from  
to GMG3 four months later,
unfair and unwarranted.

GMGl to GMG2.
with no intervening misconduct seems
Accordingly, the Board concludes that

GMGl in 1984.

At the time of

Finally, the Board

To reduce him further

6

fairness and equity dictated that Petitioner be transferred to
the Fleet Reserve as a GMG2 vice as a GMG3.

1910.4A sets forth

Nowhere in that subparagraph was the

The Board further concludes that not only was Petitioner's
transfer as a GMG3 unfair, it also was improper. In
subparagraph lla of enclosure (6); SECNAVINST  
the various actions a separation authority could take upon
receiving a case in which the ADB found misconduct and
recommended separation.
separation authority allowed to disapprove the recommendation of
an ADB that a respondent be transferred to the Fleet Reserve in
his current paygrade.
In this regard, the Board rejects that
part of the JAG advisory opinion which states that such
authority may be inferred from the separation authority's power
to modify the  
IRR.
IRR and the Fleet Reserve were treated as separate and distinct
issues.
Further; in deciding whether an individual should be transferred
to the IRR, the ADB had to consider whether the individual could
be available for recall as a mobilization asset.
However, an
individual eligible for transfer to the Fleet Reserve was to be
permitted to do so, the only issue being his grade upon
transfer.
authorize the separation authority to reduce a respondent's
paygrade  upon transfer to the Fleet Reserve, the provision in
the MILPERSMAN authorizing such action is void and of no force
and effect.

ADB's recommendation pertaining to transfer to the
9k that transfer to the

They were dealt with in two different subparagraphs.

It is very clear  

from,subparagraph  

Accordingly, since SECNAVINST  

1910.4A did not

Since Petitioner's  
evidenced by the NJP of 11 January 1989, the Board concludes
there is no justification to grant Petitioner's request to
advance him to that rate on the Retired List.

GMGl was not satisfactory, as

service.as a 

RECOMMENDATION:

a.

That Petitioner's naval record be corrected to show
that on 31 May 1989 he was honorably transferred to the Fleet
Reserve as a GMG2 (E-5), vice the transfer as a GMG3 (E-4) now
of record.

b.

That no further relief be granted.

C .

That this Report of Proceedings be

filed in

Petitioner's naval record.

x

4.

It is certified that a quorum was present at the

Board's review and deliberations,
true and complete record of the Board's proceedings in the above
entitled matter.

and that the foregoing is a

ROBERT D. ZSALMAN
Recorder

Acting Recorder

The foregoing action of the Board  

5.
review and action.

is,submitted  for your

Reviewed and Approved:

 

sop 

6 

2002

JOSEPH G. LYNCH
Assistant General Counsel
(Manpower and Reserve Affairs)

8