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NAVY | BCNR | CY2006 | 09850-06
Original file (09850-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                    2 NAVY ANNEX
WASHINGTON DC 2O37O~5100


                                    TRG
                                    Docket No: 9850-06
                                                                                  1 November 2007


This is in reference to your application for correction of your naval record pursuant to the provisions of title 10 of the United States Code, section 1552.
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 30 October 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 an advisory opinion furnished by the Judge Advocate General (Code 13), a copy of which is enclosed.
After careful and conscientious consideration of the entire record, 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 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 PFEIFFER
                                                                        Executive Director
 Enclosure

DEPARTMENT OF THE NAVY
OFFICE OF THE JUDGE ADVOCATE GENERAL
1322 PATTERSON AVENUE SE SUITE 3000
 WASHINGTON NAVY YARD DC 20374-5066

I N REPLY REFER TO
 5420
Ser l3/4BC1188607
2 Oct 07
From:    Deputy Assistant Judge Advocate General (Administrative Law)
To:      Head, Pay Section, Board for Correction of Naval Records
Subj:    REQUEST FOR COMMENTS AND RECOMMENDATION IN THE CASE OF
         
         Ref:     (a)      BCNR ltr AEG Docket # 9850-06 of 15 Aug 07
                  (b)      SECNAVINST       1811.3M
                  (c)      SECNAVINST       191Q.4B
                  (d)      MILPERSMJ~       1910-166
                  (e)      SECNAVINST       5420.193
End:     (1) Legal Analysis
1. This responds to reference (a), requesting comment and recommendation         in the case of (Petitioner).

2. Issues . Reference (a) presented two questions:
a.       What, if any, statute authorizes the reduction in grade of a regular enlisted member at the time of his or her transfer to the Fleet Reserve?
b.       Even if statutory authority exists, did any regulation in effect at the time of Petitioner’s transfer to the Fleet Reserve authorize such action?
3.       Short answers

a.       Congress has, through title 10 U.S. Code, section 6332, authorized the Secretary of the Navy to transfer a member to the Fleet Reserve. That provision makes such a transfer conclusive for all purposes. While it allows for subsequent correction of an error or omission in the determination of a member’s grade or years of creditable service, no error is apparent within Petitioner’s record.
b.       Yes. References (b) through (d), in effect at the time of Petitioner’s transfer, reference the plenary authority of the Secretary of the Navy to transfer a member to the Fleet Reserve in a reduced paygrade. Acting for the Secretary, the Assistant Secretary of the Navy (Manpower and Reserve Affairs) (ASN(M&1~)) determined, on 7 January 2004, that it was appropriate to transfer Petitioner to the Fleet Reserve in the reduced grade of E-6. Importantly, however, though these regulations were in place, the Secretary of the Navy was not required to promulgate them to undertake an action already authorized by statute.
4.       Discussion . Enclosure (1) provides a detailed legal analysis of the issues presented.
5.       Point of contact . My point of contact for this matter is LCDR (703) 604—8217.

Legal Analysis

 1.       Issues. Reference (a) presented two questions’:
a.       What, if any, statute authorizes the reduction in grade of a regular enlisted member at the time of his or her transfer to the Fleet Reserve?
b.       Even if statutory authority exists, did any regulation in effect at the time of Petitioner’s transfer to the Fleet Reserve authorize such action?
2.       Short answers
a.       Congress, through title 10 U.S. Code, Section 6332, has given the Secretary of the Navy (SECNAV) authority to transfer a member to the Fleet Reserve. That provision provides that such a transfer is conclusive for all purposes. While it allows for subsequent correction of an error or Omission in the determination of a member’s grade or years of creditable service, no error is apparent within Petitioner’s record.
b.       Yes. Regulations in effect at the time of Petitioner’s transfer reference the plenary authority of SECNAV to transfer a member to the Fleet Reserve in a reduced paygrade. Acting for SECNAV, the Assistant Secretary of the Navy (Manpower and Reserve Affairs) (ASN(M&PJ~)) determined, on 7 January 2004, that it was appropriate to transfer Petitioner to the Fleet Reserve in the reduced grade of E-6. 2

3.       Petitioner’s Background

a.       Petitioner readily admits that he committed misconduct:
I was an alcoholic who, during my last year in the Navy, became very difficult to deal with. I caused my command (SIMA, San Diego, Ca.) a lot of hardship. .
          *        *        *


I admit that my last year was horrible. . .
b.       Petitioner was in an unauthorized absence (UA) status at the time he was supposed to report to Shore Intermediate Maintenance Activity (SIMA) San Diego for duty. When found, he had to be admitted to an inpatient facility where he received four weeks of treatment for
1 BCNR ltr AEG Docket # 9850-06 of 15 Aug 07.
2 Though these regulations were in place, SECNAV was not required to promulgate them to
undertake an action already authorized by statute.
Petitioner’s statement of 16 Oct 04.


alcoholism. 4 Though nonjudicial punishment (NJP) proceedings were instituted for this, a first incident of misbehavior at a new Command, his Commanding Officer (CO), wanting to provide a fresh start, chose to dismiss the charges. 5 Petitioner’s CO explained to him that any further overindulgence of alcohol would not be tolerated. 6

c.       Between the time he reported to SIMA, 16 February 2002, and the time his CO recommended his discharge, 11 September 2003, petitioner twice received NJP: on 27 March 2003~, for violation of UCMJ, Articles 86 (unauthorized absence) and 134 (overindulgence of intoxicating liquor); and, on 18 June 2003 (30-day unauthorized absence). 8

d.       Although Petitioner received NJP only twice, he was routinely
 absent. His DD-214 shows that he lost time from 21-23 January 2003; 29
 January- 1 February 2003; 13 May-il June 2003; and, 2 September-20 October
2003.~
e.       When at work, Petitioner’s appearance was described as being like that of a bum.’°
f.       On 10 September 2003, Petitioner’s CO convened an Administrative Discharge Board to consider whether separation was warranted in his case. Three separate bases for separation were offered: (1) Misconduct_Pattern of Misconduct; (2) Misconduct_Commission of a Serious Offense; and, (3) Alcohol Abuse Rehabilitation Failure. The board members, by votes of 3-0, found that the preponderance of the evidence supported each basis for separation”
g.       On 7 January 2004, Petitioner, a chief petty officer (E-7), was authorized by ASN(M&RA) to transfer to the Fleet Reserve, effective 29 February 2004, at the reduced pay grade of E-6.” His reenlistment code

Record of A d ministrative Board Proceedings of 10 Sep 03, p. 3; SIMA San Diego ltr 1910 Ser 1200/0178 of 2 Apr 03.
~        Id.
6 Id.

NAVPERS 1070/607 of 31 Mar 03.
8 NAVPERS 1070/607 of 18 Jun 03.

Petitioner’s DD-214.
Record of Administrative Board Proceedings of 10 Sep 03, p. 4.
“ Id., p. 11.
12 CNPC ltr 1910 Ser 832/109 of 1 Dec 03 (approved by ASN(M&~)); CO~AVPERSCOM MILLINGTON TN MSG DTG 2OllOlz JAN 04.

         _
 was “RE-4” (ineligible to reenlist) ~ Despite his misbehavior, the characterization of his service was “Honorable ” 4 Furthermore he was permitted to remain on active duty until he had 20 years of service. Had Petitioner been separated soon after his board, he would not have reached 20 years and, as a result, would have lost all retirement benefits.
h.       Petitioner now asks that his paygrade at the time of discharge be upgraded from E-6 to E-7, not because it was inequitable at the time, but because, in retirement, he has gained control over his life, does not drink, and has again become a productive member of society:
I have recovered now. It has been more then {sic] 1 1/2 years, and I have been alcohol and drug free. I have been an ideal role model in my community. Committing to public speeches {sic], I still speak highly of the Navy. I also volunteer for many helpful community projects. . . .
4.       The Fleet Reserve

a.       Pursuant to title 10, U.S Code, section 6330, an enlisted Sailor or Marine who has completed 20 or more years of active service “may, at his request, be transferred” to the Fleet Reserve or Fleet Marine Corps Reserve.
b.       The original purpose for the establishment and maintenance of the Fleet Reserve was “to provide the Government with a trained body of men subject to recall to active duty when needed. ” 6 By keeping “themselves in readiness” to perform active duty, Sailors in the Fleet Reserve are “compensated in the form of retainer pay. ” 7

c.       Members of the Fleet Reserve may be ordered to active duty,’ 8 and are subject to continuing military jurisdiction under the UCMJ.’ 9

5.      


13 Id.

14 Petitioner’s DD-2l4.
~        Id.
16 Murphy v. United States, 165 Ct. Cl. 156, 160 (1964)

17 Id.
10 U.S.C. ç 688(b); 10 U.S.C. § 6485.

“ 10 U.S.C. § 802(b).





Subj:    REQUEST FOR COMMENTS AND RECOMMENDATION IN THE CASE OF

a.       Statute . Congress, through title 10 U.S. Code, section 6332, authorized SECNAV to transfer a member to the Fleet Reserve. That provision makes such a transfer conclusive for all purposes. it reads:
§ 6332. Conclusiveness of transfers
When a member of the naval service Is transferred by the
Secretary of the Navy—
 (1)      to the Fleet Reserve;
(2)      to the Fleet Marine Corps Reserve;
(3)      from the Fleet Reserve to the retired list of the Regular Navy or the Retired Reserve; or
(4)      From the Fleet Marine Corps Reserve to the retired list of the Regular Marine Corps or the Retired Reserve;
 the transfer is conclusive for all purposes. Each member so transferred is entitled, when not on active duty, to retainer pay or retired pay from the date of transfer in accordance with his grade and number of years of creditable service as determined by the Secretary. The Secretary may correct any error or omission in his determination as to a member’s grade and years of creditable service. When such a correction is made, the member is entitled, when not on active duty, to retainer pay or retired pay in accordance with his grade and number of years of creditable service, as corrected, from the date of transfer.
b.       Regulation
(1)      SECNAV retains plenary authority to separate Navy members. This authority is referenced by SECNAVINST l910.4B, in effect from 29 May 1996 to 15 December 200520: “Regardless of any board finding in an individual case, the separation authority always retains the option of requesting separation of the service memember by the Secretary under his plenary authority. ” 2 ’ That provision applied in this case; the Chief of Naval Personnel (CNP), the separation authority, asked ASN(M &RA ) to exercise secretarial plenary authority. 22

(2)      SECNAVINST 181l.3M also addressed transfers to the Fleet Reserve. It was effective from 15 November 1989 to 17 December 2005, another period encompassing Petitioner’s transfer. This instruction

20 Petitioner transferred to the Fleet Reserve during this time frame , on 29 February
2004.
21 SECNAVINST 1910.4B, Part 6 of End. (2), ¶ 2c(2).
22 CNPC ltr 1910 Ser 832/109 of 1 Dec 03.

authorized CNP to prescribe policy and procedures governing officer and enlisted transfers to the Fleet Reserve. 23

(3)      CNP, in turn, promulgated MILPERSMAN 1910-166, which provided: “SECNAV may transfer [a] member in [his] current or [at a] reduced paygrade, as deemed appropriate. ” 24 That is what happened in this case. On 7 January 2004, ASN(M&RA), acting for SECNAV, decided that Petitioner would transfer to the Fleet Reserve in the reduced grade of
 E—6 ~25
C.       An advisory opinion of the U.S. Attorney General. The policy regarding the transfer of enlisted members to the Fleet Reserve is longstanding. The Honorable Harlan Fiske Stone, then the U.S. Attorney General and later the 12th Chief Justice to the U.S. Supreme Court, opined on the subject. He took the view still set forth in title 10 U.S. Code, Section 6332, that absent error a member’s grade determination upon transfer to the Fleet Reserve is conclusive and final:
When the Secretary of the Navy has transferred an enlisted man of the naval service to the Fleet Naval Reserve, his eligibility has been established in the only way provided by law; the act of the Secretary, in the absence of circumstances amounting to fraud, is final; and is conclusive upon everybody, including the Secretary himself and his successors in office.
This general rule of finality must be qualified to this extent: In a case where the decision of the Secretary was not merely erroneous but so plainly contrary to both law and fact that it could not be regarded as an exercise of judgment, but rather as an inadvertence, the error might be corrected and the case reconsidered in the light of the correction.’ 6

6.       Conclusion . Petitioner’s recovery is highly laudable, but does not bear upon the judgment of the Secretary in setting his paygrade prior to his transfer to the Fleet Reserve. We recommend that BCNR deny petitioner’s request for relief.



23 SECNAVINST l811.3M, ¶ lib (Transfer of Enlisted Me mb ers to the Fleet Reserve or the
Fleet Marine Corps Reserve)
24 MILPERSMAN 1910-166, CH-31, 5 Feb 01, was in effect at the time.
25 CNPC ltr 1910 Ser 832/109 of 1 Dec 03 (approved by A5N(M&RA)); COAVPER G CoM
MILLINGTON TN MSG DTG 201101z JAN 04.
26 Op. Atty Gen. 25 (1924) ; see also United States v. Allen , 33 M.J. 209, 216 (1991) (“This is consistent with the long-standing proposition that a transfer of a service me mb er to the retired list is conclusive in all aspects as to grade




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