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NAVY | BCNR | CY2005 | 03614-05
Original file (03614-05.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100




                 TRG
 Docket No: 3614-05
25 August 2005


From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy

                           Ref: (a) Title 10 U.S.C. 1552
En cl :    (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 Reserve, filed an application with this Board requesting that his record be corrected to show that he transferred to the Retired Reserve vice being discharged.
2.       The Board, consisting of Mr., Ms. and Ms. reviewed Petitioner’s allegations of error and injustice on 23 August 2005 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.
b.       Although it appears that Petitioner’s application 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.

         c.       Petitioner reenlisted in the Naval Reserve on 13 November 1984 for three years as a chief petty officer (BMC;
7). He subsequently, extended that enlistment for 24 months. At the time of his reenlistment he had completed over 17 years of qualifying service on prior enlistments.
                  d.       On 12 October 1987 a Navy drug laboratory reported that Petitioner’s urine sample had tested positive for marijuana. Thirty days later, on 12 November 1987, Petitioners’ anniversary year ended and 28 days of qualifying service for reserve retirement. On the next day, the 24 month extension became effective.
 . At that time, he was credited with 20 years, 1 month

e.       Petitioner was then notified of separation processing by reason of misconduct due to drug abuse. An administrative discharge board (ADB) convened on 9 January 1988 and found that he had committed misconduct and recommended that he be issued an honorable discharge. The AIDE also recommended, in the alternative, that he be transferred to the Retired Reserve in his current pay grade currently if eligible to do so.
f.       On 24 March 1988 the commanding officer recommended that Petitioner be transferred to the Retired Reserve in the next inferior pay grade. About three months later, the discharge authority requested that his eligibility for retired pay be verified. However, it was not until 18 October 1988 that Petitioner was issued a Notification of Eligibility for Retired Pay at Age 60. On 26 October 1988, the Chief of Naval Operations (CNO) directed an honorable discharge by reason of misconduct, but also stated that the discharge should be held in abeyance for 30 days to allow Petitioner to transfer to the Retired Reserve in pay grade E-7. Since Petitioner did not make such a request, he was honorably discharged on 26 November 1988. He became 60 years old on 16 October 2003 and is eligible for retired pay as a former member.
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. It is unclear if he ever actually received the 26 October 1988 directive from CNO, that gave him the opportunity to retire as a chief petty officer. However, the Board believes that he certainly would have done so if had been aware of the opportunity. Given Petitioner’s many years of good service and the direction from CNO, the Board concludes that his record should now be corrected to show that he transferred to the Retired Reserve. Because of the requirement of the Uniform Retirement Date Act, the Board concludes that he should be transferred to the Retired Reserve on 1 November 1988 in the rate of BMC. Since he is now 60 years old, the record should be further corrected to show that he transferred to the Retired List on 16 October 2003, his 60th birthday.
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 status in the Retired Reserve.


RECOMNENDATION:
a. That petitioner’s naval record be corrected to show that he transferred to the Retired Reserve on 1 November 1988 in the rate of BMC, vice the discharge of 26 November 1988 now of record. Since he is now 60 years old, the record should be further corrected to show that he transferred to the Retired List on 16 October 2003, his 60th birthday.
b. 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.
R OBERT D ZSALMAN         ALAN E GOLDSMITH
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.



                                                     
W. DEAN PFEIFFER
Executive Director

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