DEPARTMENT OF THE  NAVY 

BOARD  FOR  CORRECTION  OF  NAVAL  RECORDS 

2  NAVY  ANNEX 

WASHINGTON  DC  20370-5100  TRG 

Docket No:  5701-02 
12 November 2002 

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

Secretary of the Navy 

RECORD OF 

Ref: 

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

Encl:  (1) Case Summary 

(2) Subject's  naval record 

1.  Pursuant to the provisions of reference  (a), Petitioner, a 
former commissioned officer in the Naval Reserve filed an 
application with this Board requesting, in effect, that his 
record be corrected to show reinstatement in the Naval Reserve so 
that he can qualify for reserve retirement. 

2.  The Board, consisting of Mr. Brezna, Mr.  Kastner and Mr. 
McPartlin, reviewed Petitioner's  allegations of error and 
injustice on 5 November 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'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. 

Petitionerr s application was filed in a timely manner. 

c.  Petitioner enlisted in the Navy on 2 May 1976 and 

accepted a commission as an ensign in the N a n 1  Reserve on 12 
August 1977.  He accepted a commission as a lieutenant in the 
Regular Navy on 9 September 1981 and was honorably discharged on 
1 February 1988.  He then earned seven consecutive qualifying 
years for reserve retirement and was promoted to lieutenant 
commander (LCDR; 0-4).  Accordingly, at the end of the 
anniversary year on 1 February 1995, he was credited with 18 
years, 7 months and 9 days of qualifying service for reserve 
retirement.  He earned no further qualifying years and was 
honorably discharged on 31 August 2000. 

d.  Attached to enclosure  (1) is an advisory opinion from 

Director, Naval Reserve Administration Division, Navy Personnel 
Command.  The opinion states, in part, as follows: 

.... In August 1994, he was removed from a drill pay 
billet and transferred to the local Volunteer Training 
Unit  (VTU)  in a non-pay status, after having twice 
failed of selection for promotion. ..... 
.... In 1997, with 20 years of codssioned service and 
having at least twice failed of selection for 
promotion,  (Petitioner) became subject to the attrition 
provisions of  (Title 10, U.S.  Code 1407).  However, per 
the sanctuary provision of  (Title 10, U.S.  C'ode  12646) , 
he was retained in an active status for three 
additional years to allow him the opportunity to 
complete service requirements for retirement 
eligibility.  Although we extended sanctuary, we could 
find no record on file that we advised  (Petitioner) of 
such.  Notification is not required by statute, but it 
is provided as an administrative practice.  In June 
2000, having performed no further reserve service, we 
notified him ..... that he had not attained retirement 
eligibility during his retention period and that he was 
being honorably discharged from the Na-1 
Reserve on 31 
August 2000.  ........ 
.... We feel that petitioner is personally responsible 
for his current situation.  We note that he did not 
completely investigate opinions for an early retirement 
in 1994 and he stopped participating in the Na-1 
Reserve Program in 1995, less than two years before 
attaining retirement eligibility.  He initiated no 
contact with Na-1 
Reserve program managers during his 
remaining five years in an active status and waited an 
additional two years after he was discharged before 
raising an inquiry.  We believe that a Na-1  Reserve 
Officer with over 18 years of qualifying service should 
have been expected to exercise some initiative to 
clarify his reserve status before he was discharged. 
Although we can not determine if the Navy informed him 
that he had been retained in an active status for three 
additional years, we considered this a minor, if not 
moot, possible error in view of his apparent disregard 
for his Na-1  Reserve Career.  Therefore, we find no 
error or injustice on the Navy's  part that warrants 
granting this petitioner . 
.... If BCNR considers granting the petitioner relief 
on the basis that there is no proof that the navy 
notified him of his sanctuary status in 1997, we 

recommend that BCNR direct that his discharge be 
cancelled and that he be retired effective 1 February 
1995 under the RTB  (Reserve Transition Benefit) 
program.  ...... 
e.  Petitioner states in his rebuttal to the advisory 

opinion that he was misadvised about the possibility of earning 
retirement points while in the Individual Ready Reserve  (IRR), 
and was advised that he would be informed when he was eligible 
for retirement.  He also points out that the Navy has conceded 
that he may not have been properly advised of the sanctuary zone 
requirements.  He has also submitted copies of documents, dated 
21 August 1994 and 6 February 1995, which show that on those 
dates he requested transfer to the Retired Reserve under the 
provisions of the RTB.  It cannot be ascertained from the records 
why these requests were not processed. 

f.  The "Temporary Special Retirement Qualification 

AuthorityN was enacted into law in 1992 and is codified at 
Title 10 U.S.C.  12731a.  The law allows retirement of 
reservist with 15 or more years of qualifying service during 
the period 23 October 1992 to 1 October 1999 (subsequently 
extended to 31 December 2001).  The circumstances permitting 
early retirement, as they apply to this case, included loss 
of a pay billet. 

g.  The Board is aware that the Uniform Retirement Date Act, 
5 U.S.C.  8301, requires that the effective date of any retirement 
be the first day of the month. 

CONCLUSION: 

Upon review and consideration of all the evidence of record the 
Board concludes that Petitioner's  request warrants favorable 
action.  The Board notes that Petitioner was in good standing in 
the Naval Reserve in August 1994 when he lost his pay billet and 
was eligible for RTB at that time.  It is unclear why he waited 
until 6 February 1995 to apply for the RTB or why the application 
was not processed.  Although the Board does not condone his 
inaction in this matter, it notes that he was eligible for 
retirement in 1994 and his request should have been processed. 
Therefore, the Board concludes that the record should be 
corrected to show that he transferred to the Retired Reserve 
under the provision of the RTB program in the grade of LCDR with 
eligibility for retired pay at age 60.  Given the requirements of 
the Uniform Retirement Date Act, the retirement should be 
effective on 1 February 1995, vice the discharge of 31 August 
2000 now of record. 

The Board further concludes that this Report of Proceedings 

should be filed in Petitioner1s naval record so that all future 
reviewers will understand his status in the Retired Reserve. 

RECOMMENDATION : 

a.  That Petitioner's naval record be corrected to show that he 
transferred to the Retired Reserve with eligibility for retired 
pay at age 60 under the provisions of the RTB program effective 
on 1 February 1995 in the grade of LCDR, vice being discharged on 
31 August 2000. 

b.  That this Report of Proceedings be filed in Petitionerls 
naval record. 

4.  It is certified that a quorum was present at the Boardls 
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 .   The foregoing report of the Board is submitted for your 
review and action. 

Assistant  General Counsel 
(Manpower and  Reserve Affairs)