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NAVY | BCNR | CY2005 | 08122-05
Original file (08122-05.rtf) Auto-classification: Approved

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DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


 TRG
Docket No: 8122-05
7 February 2007
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    REVIEW OF NAVAL RECORD OF

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 commissioned officer in the Navy Reserve, filed an application with this Board requesting that his record be corrected to show that he retired under the provisions of the Reserve Transition Benefit (RTB) program.
2.       The Board, consisting of Mr. Mr. reviewed Petitioner’s allegations of error and injustice on 30 January 2007 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 consider the application on its merits.
c.       Petitioner entered active duty on 30 May 1982 and served until 29 February 1988, a period of five years and nine months. He was commissioned in the Naval Reserve on 1 March 1988 and then earned 10 consecutive qualifying years for reserve retirement purposes. Therefore, at the end of his anniversary year on 28 February 1997, he was credited with 15 years and 9 months of qualifying service. During the next anniversary year, on 1 June 1998 he was promoted to commander (CDR; 0-5).




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d.       Because of Petitioner’s promotion, on 1 October 1998, he was involuntarily removed from a pay billet. Since he was involuntarily removed from a pay billet, he became eligible for early retirement under the provisions of the RTB program. On 25 September 1998 the commanding. officer of the Naval Reserve Center forwarded his request for early retirement to the Commander, Naval Reserve Forces, recommending that early retirement be approved. Apparently, the early retirement request was either not forwarded or was lost in the mail, because no action was taken.
e.       In 2005 Petitioner discovered that he had not’ been retired and applied to the Board. He states in his application that he was remiss in following up to make sure the paperwork was processed in a timely manner. He further states, in part as follows:
...      On 20 September 1998, I submitted the proper paperwork (attached) for Application for Reserve Transition Benefits the Baltimore Reserve Center. I was told at the time by YNC .... that all paperwork has been submitted and that I was officially retired. I received no further communication from the Center. or reserve concerning this matter until the letter dated 24 May 2005 from Department of the Navy, Navy Personnel Command. At that time, we figured out that .... my paperwork was never submitted from the Baltimore Reserve Center, to Commander, Naval Reserve Force .... I am forwarding a copy of the packet that I was given at (the) time of retirement The only thing that appears to be incorrect is that I will have to retire as a LCDR due to (the fact) that I was just promoted to CDR four months prior to the RTB application. I understand that issue.
f.       Attached to enclosure (1) is an advisory opinion from the Navy Personnel Command that sets forth the provisions of the RTB program and confirms that no request for early retirement was ever received. The opinion further states, in part, as follows:
...      Because this case also involved a rank reduction due to not meeting the 3-year Time-in-Grade requirement to retire as an 05, NRPC would also have been required to stop processing the retirement and forward the case to NPC for further research and confirmation of retirement at a reduced rank. If approved by NPC, NRPC would complete the retirement at the authorized reduced rank, and forward the retirement certificate and orders to the member. None of this ever took place since the member’s request was never forwarded for processing. Accordingly, we must recommend the member’s petition be denied.
...      (His) official record shows that he still has time to complete his Navy Reserve career and become eligible for retirement pay as a commander at age 60. But he needs to take action now. He has been advised to get active and complete these requirements. It should also be pointed out that as a commander, he will receive approximately $800.00 more retirement pay per months at age 60 than he would have received has his RTB package been approved an processed.















CONCLUSION:

Upon review and consideration of all the evidence of record the Board concludes that Petitioner’s request warrants favorable action. Notwithstanding the recommendation contained in the advisory opinion, the Board believes corrective action is warranted in this case. It is clear from the record that Petitioner served in an excellent manner for over 15 years and was eligible in all respects for transfer to the Retired Reserve under the provisions of the RTB program. Therefore, the Board believes that his request for, early retirement would have been approved in the reduced grade of LCDR. Therefore, the Board concludes that his record should be corrected to show that effective on 1 January 2000 he transferred to the Retired Reserve with eligibility for retired pay at age 60 under the provisions of the RTB program. Since he did not complete the requirements to retire as a CDR, he should be retired in the grade of LCDR.

The Board further concludes that this Report of Proceedings should be filed in Petitioner’s naval record so that all future reviewers will understand the circumstances of his retirement in the grade of LCDR.

RECOMMENDATION:

a. That Petitioner’s naval record be corrected to show that effective on 1 January 2000, he transferred to the Retired Reserve in the grade of LCDR with eligibility for retired pay at age 60.

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.



ROBERT D. ZSALMAN                                    ALAN E. GOLDSMITH
 Recorder                                                     Acting Recorder
 5.       The foregoing report of the Board is submitted for your review and action.
Reviewed and approved:
Robert T. Call i
Assistant General Counsel
 Manpower and Reserve Affairs)
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