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NAVY | BCNR | CY2006 | 02989-06
Original file (02989-06.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O37O-51OO
JRE
Docket No. 02989-06
20 March 2007

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

Subj:    FORMER USN,
REVIEW OF NAVAL RECORD

Ref:     (a) 10 U.S.C. 1552

End:     (1) DD Form 149
(2)      NPC ltr 7220 PERS-4823
(3)      Subject’s naval record

1.       Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to show , in effect, that he transferred to the Fleet Reserve pursuant to the Temporary Early Retirement Authority (TERA) effective 1 June 1997, vice being discharged with entitlement to disability severance pay on 19 May 1997.

2.       The Board, consisting of Messrs... and reviewed Petitioner’s allegations of error and injustice on 23 February 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 was released from active duty on 24 March 1995 and transferred to the Temporary Disability Retired List (TDRL), having completed 15 years, 5 months and 16 days of active duty
service. He was discharged by reason of physical disability with entitlement to severance pay on 19 May 1997.

c.       In correspondence attached as enclosure (2), the Board was advised by the Commander, Navy Personnel Command, that Petitioner was not eligible for transfer to the Fleet Reserve under TEPA on 24 March 1995 because of his pending transfer to the TDRL at that time.

d.       DOD Instruction 1332, section E3.P7.2.1.1 provides that members with a disposition of separation for physical disability who had 15 but less than 20 years of service computed under Section 1208 of reference (b) and whose unfitting conditions were not due to the member’s intentional misconduct or willful neglect or incurred during a period of unauthorized absence would be afforded the opportunity to elect separation for physical disability or to apply for, and if approved, nondisability retirement under the Temporary Early Retirement Authority (TERA) under 10 U.S.C. 3911 (reference (b)) during the period of temporary special qualification authority beginning on October 23, 1993, and ending on October 1, 1999. The same opportunity shall be afforded to members recommended for placement on or separation from the TDRL.

CONCLUSION:

Upon review and consideration of all the evidence of record, the Board concurs with the ruling of the Commander, NPC, that Petitioner was not eligible for transfer to the Fleet Reserve pursuant to TERA in 1995; however, he was eligible to apply for such transfer in 1997 in accordance with the provisions of the DOD instruction cited above. Accordingly, the Board concludes that his discharge was unjust, but not erroneous.

RECOMMENDAT ION:

a.       That Petitioner’s naval record be corrected to show that his name was not removed from the TDRL, and he was not discharged by reason of physical disability on 19 May 1997.

b.       That his record be further corrected to show that the disability severance payment he received on or about 19 May 1997 is not considered erroneous for the purpose of waiver or cancellation, and that it is not subject to waiver or cancellation.

 c.       That his record be further corrected to show that his name was removed from the TDRL on 31 May 1997, and that he transferred to the Fleet Reserve pursuant to the Temporary Early Retirement Authority effective 1 June 1997.
d.       That a copy of 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        J AMES R. EXNICIOS
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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