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NAVY | BCNR | CY2006 | 06612-06
Original file (06612-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


 Lcc
 Docket No. 6612-06
14 Mar 07







This is in reference to your application for correction of your naval record pursuant to the provisions of 10 usc 1552.
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 13 March 2007. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinion furnished by CMC memorandum 5800 JARS, 29 January 2007, a copy of which is attached.
After careful and conscientious consideration of the entire record, a majority of the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. In this connection, the Board substantially concurred with the comments contained in the advisory opinion. Accordingly, your application has been denied. The names and votes of the members of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new and material evidence or other matter not previously considered by the Board. In this regard, it is also important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.
Sincerely,


W.       DEAN PE IFFER
Executive Director

Enclosure





5800
JARS
 JAN 2 9 2007



MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS

 Subj:    TEMPORARY DISABILITY RETIRED LIST (TDRL) PAY ISSUE

Ref:     (a)      BCNR memo from Ms. Crone of 14 Nov 06
         (b)      10 United States Code 1211
         (c)      SECNAVINST 1850.4E, Policy Governing the TDRL
                  of 19 Oct 06

 1.       Issues
        
         a.       Should XXXX adjusted date of rank be 1 October1998?
         
         b.       Should XXXX receive back pay and allowances back d ated to 1 October 1998, which is during the time period he was still on the TDRL?

         2.       Opinion. XXXXX was properly placed on the TDRL. While on TDRL, he was properly paid all monies due him. Although his subsequent adjusted date of rank was properly determined to be 1 October 1998, he articulates no claim of an error or injustice that deprived him of back pay and allowances due him. Accordingly, his request should be denied.
3.       Background

•        SNM was placed on the TDRL as a captain on 1 April 1997, thereby making him ineligible for promotion during his time on the TDRL.

•        On 1 April 2002, SNM was found fit for duty and returned back to the Active Duty List(ADL) as a Captain.

•        On 1 September 2002, the Secretary of the Navy recommended to the Deputy Secretary of Defense that be nominated to the Senate for appointment under the provisions of 10 USC 1211 and further, that based upon his probable opportunity for advancement and promotion, his appointment be

ATTORNEY-CLIENT WORK PRODUCT: Do not release or redistribute outside office of recipient without coordinating with Judge Advocate Division, Headquarters, u.s. Marine Corps.




Subj:    TEMPORARY DISABILITY RETIRED LIST (TDRL) PAY ISSUE
to the grade of major with the date of rank of 1 October 1998, which is the date of rank he would have held had he been promoted in due course and not been on the TDRL.
•        On 16 December 2002, the Deputy Secretary of Defense approved the Secretary of the Navy’s recommendation.
•        On 4 March 2003, MMPR published a GENADMIN stating: The Secretary of the Navy, acting for the President of the United States, hereby authorizes the promotion of the following named regular officer, as indicated, to the permanent grade of major. Rank, pay, and allowances are effective from 1 Oct 98.qfl~ See reference (a).
•        It is not known who made the decision that
 rank, pay, and allowances were to be effective from 1 October 1998. There is a 25 March 2002 memorandum from MMPR to the Head, Disability Section, Separation and Retirement Branch, saying that had he not gone on TDRL his date of rank would have been 1 October 1998.
4.       Answer

a. The backdating of date of rank to 1 October 1998 was proper even though he was on the TDRL at the time. Specifically, 10 USC 1211 states that action shall be taken for members returning from TDRL on a fair and equitable basis, with regard being given to the probable opportunities for advancement and promotion that the member might reasonably have had if his name had not been placed on the TDRL. Both the Secretary of the Navy’s memorandum to the Deputy Secretary of Defense and his approval state the rationale to backdate date of rank to 1 October 1998 was for the purpose of his probable future opportunity for advancement and promotion. Therefore, the date of rank determination is consistent with both 10 USC 1211 and the accompanying authorization.

         b. XXXX is not entitled to back pay and allowances. Rather, as discussed above, he is only entitled to have his date of rank backdated for promotion purposes. Specifically, the only

ATTORNEY-CLIENT WORK PRODUCT: Do not release or redistribute outside office of recipient without coordinating with Judge Advocate Division, Headquarters, u.s. Marine Corps.





2






Subj:    TEMPORARY DISABILITY RETIRED LIST (TDRL) PAY ISSUE

language that creates the expectation of back pay and allowances for s in the GENADMIN that published his notice of promotion. Nowhere in 10 USC 1211, the Memorandum from the Secretary of the Navy, or the approval by the Deputy Secretary of Defense is back pay and allowances mentioned or contemplated. Further, the clear rationale for backdating an individual’s date of rank coming off the TDRL is articulated clearly in SECNAVINST 1850.E. It says consideration will be given for the purpose of being placed on the lineal list or promotion list for the probable opportunities for advancement and promotion to which the member might reasonably have been entitled had it not been for the placement of his name on the TDRL. See reference (c) . Therefore, based upon the language of the applicable statute and regulation, there is no language which authorizes to receive backdated pay and allowances due to his date of rank adjustment, which was for promotion purposes.


Captain, USMC
Action Officer, Civil Law Branch
HQMC, Judge Advocate Division


Approved:__
















 ATTORNEY-CLIENT WORK PRODUCT:    Do not release or redistribute outside office of recipient without coordinating with Judge Advocate Division, Headquarters, u.s. Marine Corps.
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