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NAVY | BCNR | CY2003 | 09449-03
Original file (09449-03.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100        


                  TRG: jdh
                  Docket No. 09449-03
                  20 May 2004



 From:    Chairman, Board for Correction of Naval Records
To:      Commandant, United States Marine Corps
Subj:    REVIEW OF NAVAL RECORD OF EX-SSGT USMC
Ref:     (a) 10 U.S.C. 1552
End:     (1) Copy of approved Report of Proceedings w/o attachments
 (2) Copy of letter to Subject
1.       In accordance with reference (a), the Board for Correction of Naval Records has reviewed allegations of error and injustice in Subject’s naval record.

2.       The designated representative of the Assistant Secretary of the Navy for Manpower and Reserve Affairs has reviewed the proceedings of the Board and approved the recommendation for corrective action as set forth in enclosure (1)

3.       Regulations approved by the Secretary of the Navy require that Subject’s naval record be corrected, where appropriate, in accordance with the approved recommendation of the Board.

4.       The Board has advised Petitioner and the Defense Finance and Accounting Service of the designated representative’s action.

5.       It is requested that this Board be furnished a copy of any correspondence relating to the approved recommendation.



 ALAN E. GOLDSMITH
By direction
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 TRG
 Docket No: 9449-03
 20 May 2004
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    REVIEW OF NAVAL RECORD OF EX-SSGT USMC
Ref:     (a) Title 10 U.S.C. 1552
End:     (1) Case Summary
 (2) Subject’s naval record
1.       Pursuant to the provisions of reference (a), Petitioner, a former enlisted member in the Marine Corps, filed an application with this Board requesting that his record be corrected to show that he is entitled to separation pay and any other pay entitlements that may have accrued because of previous corrective actions taken in his case.

2.       The Board, consisting of Mr. Koman, Mr. Milner and Ms. McCormick, reviewed Petitioner’s allegations of error and injustice on 11 May 2004 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 Petitioners 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 was discharged under other than honorable conditions by reason of misconduct on 7 April 1999. In connection with this discharge, he was reduced in grade from staff sergeant (SSGT; E-6) to lance corporal (LCPL; E-3). On 1 December 2000, the Naval Discharge Review Board (NDRB) considered Petitioner’s case and concluded that he had been improperly discharged. Therefore, NDRB directed that his discharge be recharacterized to honorable and that the reason for discharge be changed to “Secretarial Authority”. He was told to apply to this Board if he desired reinstatement on active duty.
d.       Petitioner’s application to this Board was received on
 1 May 2002. After reviewing Petitioner’s submission and an advisory opinion from Headquarters Marine Corps, the Board concluded that he was properly discharged and the action taken by NDRB provided sufficient relief in his case. However, the advisory opinion pointed out that the only reason he was reduced to LCPL was because he was discharged under other than honorable conditions. Since Petitioner’s discharge had been recharacterized to honorable, it was recommended that he be restored to SSGT. The Board agreed with this recommendation and Petitioner’s record has been corrected to show that he was discharged in the grade of SSGT.

 e.       Petitioner is now applying to the Board requesting that he be paid as a SSGT in accordance with the Board’s action, and that he be paid separation pay and any other miscellaneous payments.
f.       In a similar case, the Deputy Assistant Judge Advocate General (DJAG) for Administrative Law provided an advisory opinion to the effect, that individuals discharged by reason of secretarial authority are entitled to separation pay. In support of this conclusion, the opinion cites 10 U.S.C. 1174(b), Department of Defense Instruction (DODINST) 1332.29, Secretary of the Navy Instruction (SECNAVINST) 1900.7G, and Appendix D of the Procedures Training Guide of the Defense Joint Military Pay System (DJMS). DODINST 1332.29 limits the payment of half separation pay to individuals discharged for certain reasons. Secretarial authority is not listed as one of those reasons. Further, the DJMS Procedures training guide states that an individual separated by reason of secretarial authority is entitled to full separation pay. Based on the advisory opinion and analysis of the pertinent instruction and the training guide, the Board concluded in the previous case that the individual discharged by reason of secretarial authority was entitled to full separation pay.
g.       10 U.S.C. 1174 states that in order to receive separation pay an individual must enter into a written agreement to serve in the Ready Reserve for at least three years. Concerning this issue, SECNAVINST 1900.7G states as follows:
...      A member who enters into this written agreement and who is not qualified for appointment or enlistment in the Ready Reserve need not be enlisted or appointed to be considered to have met this condition of eligibility for separation pay. ...
CONCLUSION:

Upon review and consideration of all the evidence of record the Board concludes that Petitioner’s request warrants favorable action. Petitioner had completed about 14 years of active duty at the time of his discharge on 7 April 1999. Because of the action taken by the NDRB, his record now shows that he was honorably discharged by reason of secretarial authority. Given these circumstances, it is clear that if he was honorably discharged on 7 April 1997 by reason of secretarial authority, he would have signed an agreement to serve in the Ready Reserve for three years in order to receive full separation pay. Therefore, the Board concludes that full separation pay is appropriate in this case.

Concerning the other pay issues, the Board believes that Petitioner is entitled to be paid any amounts due to him as a result of the NDRB action and the previous action of this Board. Therefore, it appears that no further action on these pay items is required.

The Board further concludes that this Report of Proceedings should be filed in Petitioner’s naval record so that all future reviewers will understand his entitlement to full separation pay.

RECONMENDAT ION:

 a.       That Petitioner record be corrected by amending Petitioner’s Certificate of Release or Discharge from Active Duty (DD Form 214) by adding to block 18 (Remarks) the statement “Entitled to full separation pay”.

b.       That Petitioner’s record be further corrected to show that he signed a written agreement to be a member of the Ready Reserve for three years but was not required to perform that duty because of the circumstances that led to his discharge.

c.       That this Report of Proceedings be filed in Petitioner’s naval record.


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        ALAN E. GOLDSM H
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 authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.



                                                                        Sincerely,



                                                                        W. DEAN PFIEFFER
                                                                        Executive Director
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                             2 NAVY ANNEX
                                     WASHINGTON DC 20370-5100

         TRG: jdh
         Docket No. 09449-03
          20 May 2004


MR XXXX
Dear Mr. XXXX:
This is in reference to your application for correction of your naval record submitted pursuant to the provisions of title 10 of the United States Code, section 1552.
The final decision in your case is set forth in the Board’s report of proceedings, a copy of which is enclosed. The approved changes to your naval record will be made by the Commandant of the Marine Corps (CMC) Headquarters Marine Corps, 2008 Elliot Road, Quantico VA 22134. After CMC makes these changes the Defense Finance & Accounting Service (DFAS) will review your record and make payment of any money that you may be entitled to. Questions concerning money paid and/or the manner of computation should be directed to DFAS-POCC/DE, 6760 E Irvington Place, Denver, CO 80279-7000. Please wait at least 180 days from the date of this letter before contacting CMC or DFAS about the status of your case. However, you should immediately notify DFAS and CMC of any change in your mailing address.
Sincerely,


ALAN E. GOLDSMITH
 Head, Discharge Section
Enclosure
Copy to:
DFAS-POCC/DE
 HQMC

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