DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

HD:hd
Docket No: 05817-03
15 December 2003


From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:
Ref:
End:     (1) BCNR file, docket numbers 5817-03 (Subject’s current case) and 5214-98 (Subject’s initial case), mci Subject’s naval record
(2)      Rep sr’s Itr dtd 1 Dec 98 re fitrep 20 Jan - 30 Sep 90
(3)      AGC (M&RA) memo dtd 9 Jul 03 w/enclosure
(4)      PERS-91 1 memo dtd 1 Oct 03
(5)      PERS-80 memo dtd 15 Oct 03
(6)      Subject’s ltr dtd 24 Nov 03 w/atchs

1.       Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed written application, at enclosure (1), which this Board denied on 17 June 1999. Petitioner again requests removing his failures of selection by the Fiscal Year (FY) 95 and 96 Naval Reserve Line Commander Selection Boards and allowing him to participate in the Individual Ready Reserve (IRR). He now also requests that he be granted constructive satisfactory service, for purposes of eligibility for a reserve pension, since 1995; and that block 57 (desirability for command) of his fitness report for 20 January to 30 September 1990 be changed from “B” (second best) to “A” (best), in accordance with enclosure (2), a letter from the reporting senior (letter not in Petitioner’s record). A copy of the fitness report is at Tab A. After reviewing the Board’s previous decision, the Assistant General Counsel (Manpower and Reserve Affairs) issued the memorandum at enclosure (3), directing that a new panel of the Board reconsider Petitioner’s case. This memorandum directed that the case be reconsidered in light of the information in the enclosure to the memorandum. The memorandum specifically directs that the Board address “the Navy’s inability to timely transfer [Petitioner] to the Inactive Status List [ISL] and the effect this had on his promotional opportunity.”

2.       An entirely new panel of the Board, consisting of Messrs. Koman, Morgan and Pauling, reviewed Petitioner’s allegations of error and injustice on 11 December 2003, and pursuant to its regulations, determined that relief should be denied. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies.
Title 10 U.S.C. 1552
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 at enclosure (1) was filed in a timely manner.

c.       Petitioner did not meet the minimum Naval Reserve participation requirements for his anniversary year ending in May 1992, or any anniversary year thereafter. His transfer to the ISL for unsatisfactory participation, which would have made him ineligible for promotion consideration, required action by a mobilization disposition board. He was not considered by either of the mobilization disposition boards convened in January 1993 and August 1994. He was considered and failed of selection by the FY 95 and 96 Naval Reserve Line Commander Selection Boards, convened in April 1994 and 1995, respectively. He was considered by the mobilization disposition board convened in August 1995, which resulted in his transfer to the ISL on 1 September 1995. When this board convened, it was too late to prevent either of his failures of selection for promotion. By reason of his two failures of selection, he was discharged from the Naval Reserve on 1 August 2001. Currently he is credited with 11 years and seven months of qualifying service for purposes of eligibility for a reserve pension, whereas 20 years is required.

d.       Relying on title 10, United States Code, section 12642, Petitioner contends that his failures of selection to commander should be removed (and by implication, his consequent discharge should be set aside), because his failure to meet minimum Naval Reserve participation requirements for his anniversary year ending in May 1992 should have resulted in his transfer to the ISL before he was considered for promotion. He also cites Bureau of Naval Personnel Instruction 1001 .39A, but this directive stated that unsatisfactory participants ~y be transferred to the ISL; it did not mandate such transfer. Petitioner further contends it is very unfair for an unsatisfactory participant to be kept in a status where the individual is “doomed” to fail of selection for promotion.

e.       Enclosure (2) is a letter from the reporting senior who submitted Petitioner’s fitness report for 20 January to 30 September 1990. This letter indicates the report should be revised by changing block 57 from “B” to “A.” The stated reason was “information received after the report was written,” specifically, Petitioner’s having volunteered for Desert Storm and his “Outstanding command of his Maintenance Division.”

f.       In correspondence at enclosure (4), PERS-91 1, the Navy Personnel Command (NPC) office with cognizance over Naval Reserve personnel management, commented on Petitioner’s current case, urging that his petition be denied as they still find no evidence of error or injustice by the Navy. PERS-91 1 noted that at the pertinent time, transfer to the ISL was a lengthy process that required review by a mobilization disposition board. They explained that Petitioner missed consideration by the January 1993 board because his first unsatisfactory


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year, ending in May 1992, did not post on their files until October 1992, whereas their “dataset” for the board was pulled in July 1992, and notifications were mailed in August and September 1992. They said they did not have records going far back enough to explain why Petitioner was not considered by the August 1994 board. However, they did note that those who did not respond to their notification letter were placed on a list to go to the next scheduled board; Petitioner was considered by the next scheduled board, which met in August 1995. PERS-91 1 further noted that members who, upon notification that they were to be considered by a board, expressed interest in participating and asked to be removed from consideration were not considered either. They stated that a letter of 12 June 1991 from Petitioner’s commanding officer explained his then current status in the IRR, including acknowledgment that he would have continued eligibility for promotion consideration; but he showed no concern about this and did not request resignation or transfer to the ISL. They further stated that he then dropped out of the program for over six years and that he had “zero contact” with the Navy. Finally, PERS-91 1 said “His inactivity and lack of career interest at a critical juncture when in zone for promotion to commander, and his personal decision to not earn sufficient years of qualifying service to even remotely be considered for continuation, were the causes of his career demise and ultimate separation from the Naval Reserve before qualifying for a Naval Reserve retirement.”

g.       In correspondence at enclosure (5), PERS-80, the NPC office having cognizance over reserve officer promotions, recommended disapproval of Petitioner’s request in full concurrence with enclosure (4).

h.       Enclosure (6) is Petitioner’s response to enclosure (4). He maintained his argument that the Navy did not follow the statute and its own regulations when it retained him for several years in a status in which he was “doomed” to fail of selection for promotion. He alleged that he was unaware he was still in a status where he was eligible to be considered for promotion; that had he been advised he was still in such a status, he would have taken affirmative steps to change his status; and that he “was entitled to assume that if [his] participation did not meet the mandatory standards for active status, [he] would be transferred, as provided in the law and regulation, to inactive status.” He said he did contact the Navy in 1995 and 1996, but he does not say he made any contact in 1993 or 1994, when notification letters for the 1994 mobilization disposition board would have gone out. Concerning his period of inactivity, he said he “was preoccupied with very pressing family matters” and that “[his] lack of service was a function of those obligations and not any lack of interest in or commitment to continuing with [his] Naval Reserve career.”

CONCLUSION:

Upon review and consideration of all the evidence of record, and in concurrence with the advisory opinion at enclosure (4), the Board once more finds that relief should be denied.

The Board is unable to find Petitioner should have been transferred to the ISL earlier than he was. In this connection, the Board finds that title 10, United States Code, section 12642 (like


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its predecessor, section 1002), does not prescribe a timeline for removing from active status those officers who do not meet minimum participation requirements. The Board does not accept Petitioner’s contention that he was “entitled to assume” he would be transferred to inactive status if he did not meet minimum participation requirements; rather, the Board feels he should have asked whether a request for transfer to the ISL would be in order, if he actually did desire such transfer. Finally, while it is clear that inactivity harms a reservist’s chances for promotion, the Board does not consider it inherently unfair for an unsatisfactory participant to have a status permitting promotion consideration.

Since the Board is unable to find Petitioner should have been transferred to the ISL earlier than he was, the Board finds no grounds to remove his failures of selection for promotion, set aside his discharge, or grant him constructive participation credit.

Finally, the Board finds Petitioner’s fitness report for 20 January to 30 September 1990 should not be amended. The reporting senior’s letter, some eight years after the fact, does not persuade the Board that a change was warranted. The Board notes that the Petitioner may ask NPC to file the letter in his record with the report to which it relates.

In view of the above, the Board’s recommendation is as follows:

RECOMMENDATION:

a.       That relief be denied.

4. It 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        JONATHAN S. RUSKIN
Recorder         Acting Recorder

5. The foregoing report of the Board is submitted for your review and action.





Reviewed and approved:



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W.       DEAN
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