DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100TRG
Docket No: 10307-05
30 March 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

Encl: (1) Case Summary
(2) Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the Navy, filed an application with
this Board requesting reinstatement in the Navy or a change in
his reenlistment code. In the alternative, he requests a
correction to his record so that separation pay will be
authorized.

2. The Board, consisting of Mr. +i, Mr Mp and Ms.

! reviewed Petitioner's allegations of error and
injustice on 27 March 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. Petitioner's application was filed ina timely manner.

c. Petitioner reenlisted in the Navy on 6 April 2001 after
more than five years of prior active service. The quality of his
service through early 2005 is shown by the three consecutive
excellent performance evaluations, he received during the period
from 16 January 2003 to 16 March 2005. Those evaluations show
individual trait averages (ITA's) of 3.43, 4.14 and 4.14 with
laudatory comments. Further, on 28 August 2004, he was awarded a
Joint Service Commendation Medal.

d. The evaluation for the period 16 March to 20 September
2005 is adverse with an ITA of 1.67 and he was not recommended
for promotion or retention in the Navy. The evaluation comments
state, in part, as follows:

Although He) was previously recommended for retention,
his conduct has resulted in a reversal of that
recommendation. (He) is indebted to the government for
overpayment of BAH (Basic Allowance for Housing) in the
amount of $21,000.00. He made no effort to take
responsibility or to rectify this debt. He submitted a
waiver request for the debt which was uniformly denied
by his chain of command. In August, the command was
notified that (he) was indebted to the government for
overpayment of TAD (Temporary Additional Duty) funds in
the amount of $5,343.00. Although he was notified of
this in January 2005, he did not inform his chain of
command or many any effort to resolve the problem.

(He) is unable to meet current ... working hour
requirements due to family care issues ... (He) is an
administrative burden to this command due to his poor
judgment, financial problems, and noncompliance with
rules and regulations with no observable contribution
to the United States Navy. He is not recommended for
retention or advancement.

e. Petitioner was honorably discharged on 19 October 2005
at the expiration of his enlistment, as extended. The narrative
reason for separation is completion of required active service.
The separation program designator (SPD) code is "KBK" which
indicates his discharge was voluntary. He was not recommended
for reenlistment and was assigned an RE-4 reenlistment code.

£. Petitioner states that his command was out to get him
because they thought there was fraud involved in the overpayments
he received. He states that an investigation resulted in the
fraud charges being dropped. He believes that the command was
angry about the dismissal of the fraud charges and made sure that
his request for a waiver of the indebtedness was denied. He also
attempts to rebut the other negative comments in the evaluation.
However, he has not submitted any evidence to support any of his
contentions.

g. Petitioner is not eligible for the payment of separation
pay because his SPD code of KBK indicates his separation was
voluntary. An involuntary SPD code of JBK would authorize full
separation pay. The regulations allow for the payment of one
half separation pay if an individual is discharged by reason of
"nonretention on active duty" with a SPD of "JGH".

CONCLUSION:

Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants partial
favorable action. It is clear that Petitioner was overpaid in
excess of $26,000. An overpayment of this amount certainly
suggests that Petitioner knew or should have known that there was
a problem with his pay account. Further, according to his
command, he did not take adequate measures to rectify the
situation. Given the circumstances, the Board concludes that
this matter was properly mentioned in the performance evaluation
and was sufficient to support denial of reenlistment and
assignment of the RE-4 reenlistment code.

However, Petitioner served for over nine years on active duty up
until on or about 16 March 2005, a period of more than nine
years. Accordingly, the Board concludes that he should have

received separation pay upon discharge... The negative comments
in the last performance evaluation and the assignment of the RE-4
reenlistment code make the award of one half separation pay
appropriate in this case. Of course, the separation pay can be
used to offset any remaining indebtedness to the Navy. This
action can be accomplished by changing the narrative reason for
separation to nonretention on active duty and the SPD code to

JGH.

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 rationale for the payment of one

half separation pay.

RECOMMENDATION:

a. That Petitioner's naval record be corrected to show that on
10 October 2005, he was discharged by reason of nonretention on
active duty with an SPD code of JGH.

b. That the remainder of Petitioner's requests be denied.

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 FE. 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.

Lo Wears |
W. DEAN PFEI
Executive Diréeédat