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NAVY | BCNR | CY2005 | 05777-05
Original file (05777-05.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                             2 NAVY ANNEX
                                                       WASHINGTON DC 20370-5100



                                                                                          TRG
                                                       Docket No: 5777-05
                                                      26 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. Mr. and Ms. Reviewed
 Petitioner’s allegations of error and injustice on 16 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 Marine Corps Reserve for three years on 5 February 1990 in the grade of gunnery sergeant (GYSGT; E-7). Subsequently, he was mobilized in support of Operation Dessert Shield/Storm. The fitness report for the period 1 August 1990 to 31 July 1991 states, in part, as follows:




This is a combat report. (He) was recommended for a Navy Commendation Medal for his outstanding performance of duties as Company First Sergeant during this period. ... Performed the duties of both Company First Sergeant and Company Gunnery Sergeant for the Battalions’ largest company for significant portions of the reporting period. Unsurpassed loyalty and dedication to duty .... Having successfully filled a First Sergeant’s billet during combat conditions, (he) is richly deserving of promotion to First Sergeant; a failure to do so would be a disservice to the Marine Corps.

On 26 July 1991 Petitioner was awarded the Navy Commendation
Medal for meritorious service for the period 25 November 1990 to
1 April 1991.
d.       Subsequently, Petitioner was retained on active duty in a medical hold status as a result of injuries relating to his activation and participation in Operations Desert Shield/Storm. While in this status, he assisted a reserve unit and received a fitness report stating he performed the duties of a company 1stSGT in a most admirable manner.
e.       On 1 January 1992, Petitioner was promoted to first sergeant (1STSGT; E-8). Twenty-one days later, he was issued a Notification of Eligibility for Retired Pay at Age 60. At the end of his anniversary year on 6 February 1992 he was credited with 21 years of qualifying service. Subsequently, a physical evaluation board found him fit for duty and he was released from active duty on 22 April 1992. The record shows that he was then transferred to the Individual Ready Reserve on 4 February 1993, and his three year reenlistment expired on that same day. There are no discharge or other entries in his record after that date.
e.       The Board did not request an advisory opinion in this case. However, the Board is aware that Headquarters Marine Corps has routinely recommended corrective action when an individual is qualified for reserve retirement and there is no explanation in the record why they were discharged and not retired.
f.       In 1989 the law was changed to require that a reservist earn two qualifying years after being promoted in order to retire at the higher grade. The regulations allow for a waiver of the two year requirement if an individual cannot complete it through no fault of his own. As indicated, Petitioner only served about a year after being promoted and normally would have been retired as a GYSGT.
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. Petitioner was in good standing in the Marine Corps Reserve and would have been retired if he had requested it. Given the circumstances, the Board concludes that Petitioner’s record should be corrected to show that he transferred to the Retired Reserve.
Concerning the issue of his grade on retirement, the Board believes that Petitioner may not have been aware of the relatively new requirement for two years of qualifying service. In view of Petitioner’s excellent service in a 1stSGT billet during Operation Desert Shield/Storm prior to being promoted to that grade, the Board concludes that the promotion issue should be resolved in his favor and the record should be corrected to show that he retired as a 1stSGT.
The Board believes that the best way to accomplish this action is to correct the record to show that he extended his three year enlistment of 5 February 1990 for a period of one year. Sufficient retirement points should then be transferred from the excess over 50 in prior anniversary years into the additional year, ending on 4 February 1994, to make that year qualifying for reserve retirement.
Given the requirements of the Uniform Retirement Date Act the record should be further corrected to show that he transferred to the Retired Reserve in the grade of 1stSGT on 1 February 2004 vice the discharge of 4 February 1993 now of record.
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.
RECONNENDATION:
a. That Petitioner’s naval record be corrected to show that he extend his three year enlistment of 5 February 1990 for a period of one year. Sufficient retirement points should then be transferred from the excess over 50 in prior anniversary years into the additional year to make that year qualifying for reserve retirement.
b. That Petitioner’s naval record be further corrected to show that he transferred to the Retired Reserve on 1 February 1994 in the grade of 1stSGT, vice the discharge of 4 February 2003 now of record.
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. 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 7 23.6(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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