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NAVY | BCNR | CY2006 | 07321-06
Original file (07321-06.rtf) Auto-classification: Approved

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



 TRG
 Docket No: 7321-06
 5 January 2007
From:    Chairman, Board for Correction of Naval Records’
To:      Secretary of the Navy
Subj:    SUBJECT 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, an former commissioned officer in the Navy Reserve, filed’ an application with this Board requesting, in effect, that his record be corrected to show that he had more than 16 qualifying years for reserve retirement purposes and was selected for continuation to complete 24 years of commissioned service.
2.       The Board, consisting of Mr. reviewed Petitioner’s allegations of error and injustice on 5 December 2006 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 was commissioned in the Navy Reserve in September 1983 at the age of 35. He then drilled regularly for. the next 15 years. However, in the anniversary year ending on 23 September 1998, he only earned 47 of the 50 points necessary for another qualifying year. Therefore, as of 23 September 1998, he was credited with 14 qualifying years. He then had a three year period of inactivity. In 2002 he began drilling and earned two more qualifying years. Since he had twice failed of selection to commander (CDR; 0-5) he was honorably discharged on 1 October 2003 upon completion of 20 years of commissioned service. He was not considered for continuation to complete 24 years of commissioned service because the records available to the Navy Personnel Command only indicated 11 years of qualifying service.



d.       Attached to enclosure (1) is an advisory opinion from the Navy Personnel Command which states, in part, as follows:
....     Because his record shows that he had only eleven years of qualifying service at that time, he was honorably discharged from the Navy Reserve on 1 October
 2003.
We have reviewed the paperwork (Petitioner) provided with his petition and have updated his record .... to show 16 qualifying year of service and a total of 1199 points. Accordingly, if he were still in an active status, he would be eligible to be considered for continuation to 24 years of commissioned service ...
Unfortunately, (Petitioner) waited too long (almost three years) to correct his record. Because he was commissioned at a late age, and he had some years of inactivity, even if (he) requests and is approved for reinstatement and continuation in the Navy Reserve, he would still be unable to earn a Reserve Retirement before his required separation at age 62. There are no provisions in the law or policy to allow his retention past that age limit.
Accordingly, we recommend (Petitioner’s) petition be denied.
e.       Also attached to enclosure (1) is Petitioner’s rebuttal to the advisory opinion. He states, in part, as follows:
...      I request to be re-commissioned, and to return to service for the remaining years needed for retirement. I am also open to the judgment and guidance of the Board leading to other solutions or combinations of options

I was improperly separated from the USNR in October 2003. With 16 (or 17) sat year, I should not have been discharged. ... Since I should actually still have been in (an) active status, I request the Board properly allow me to continue to complete 20 retirement years of service. ....
As outlined in my Application for Correction much of my service was as a credentialed Strategic Debriefer, conducting independent operation in support -of ONI and DIA. Two Directorates at DIA have made by-name requests for me. I ask the Board to consider my potential future contributions in the GWOT as an experienced HUMIT field officer holding a current TS/SBI clearance

f.       Petitioner also contends that he actually earned four additional retirement points during the year in which he has been credited with 47 of the 50 points required for a qualifying year and that because of a clerical error, those points were credited in the wrong year. If those points were credited properly he would now have 17 years of qualifying service.
CONCLUSION:

Upon review and consideration of all the evidence of record the Board concludes that Petitioner’s request warrants favorable action. Concerning the retirement point issue the Board determined that three retirement points should be transferred from the excess over 50 in the anniversary year ending on 23 September 1997 into the anniversary year ending on 23 September 1998. With this correction he will now have 17 years of qualifying service. The Board declined to make further corrections to his retirement point record believing that he should make at least some effort to earn his retirement. Any additional changes to his retirement point record should be the subject of a future application.
With this correction Petitioner’s record will show that he actually had 17 years of qualifying service, and he would have been eligible for consideration for continuation to complete 24 years of commissioned service. Therefore, the Board concludes that his record should also be corrected to show that he was not discharged on 1 October 2003 but was continued in the Naval Reserve. This is the action that would have occurred in 2003 if Petitioner’s retirement point record had properly reflected 16 qualifying years. This correction will allow him to serve until 30 September 2007 and to earn an additional qualifying year.

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 Naval Reserve.

 RECOM MENDATION:

 a. That Petitioner’s naval record by transferring three retirement points from the anniversary years ending on 23 September 1997 into the anniversary year ending on 23 September 1998.
b.       That Petitioner’s naval record be further corrected to show that he was not discharged on 1 October 2003 and continued in the Naval Reserve to complete 24 years of commissioned service.
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.       The foregoing report of the Board is submitted for your review and action.


         W. DEAN PFEIFFER
Reviewed and approved:





ROBERT T. CALl
Assistant General Counsel
(Manpower and Reserve Affairs)


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