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NAVY | BCNR | CY2007 | 00445-07
Original file (00445-07.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


TRG
Docket No: 445-07
 23 February 2007
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of. the Navy
Subj:    REVIEW OF NAVAL RECORD

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, a former enlisted member in the Navy Reserve, filed an application with this Board requesting that his record be corrected to show that he transferred to the Retired Reserve vice being discharged.
         2. The Board, consisting of Mr.  , Mr. and Mr. reviewed Petit ioner’s allegations of error and injustice on13 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.       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 review the application on its merits.
c.       Petitioner enlisted in the Naval Reserve on 17 December 1977 and reported for three years of active duty on 27 December 1977. He was released from active duty on 26 December 1980. On 16 January 1981 he enlisted in the Regular Navy and served on active duty until he was honorably discharged on 28 May 1986, a period of 5 years, 4 months and 13 days. The next day he reenlisted in the Navy Reserve. In accordance with regulations then in effect, his anniversary year was established as beginning on 29 May 1986, his first day of service in the Navy Reserve.







d.       In the next 12 anniversary years, Petitioner earned 11 qualifying years for reserve retirement. Therefore, at the end of his anniversary year on 28 May 1998, he was credited with 19 years, 4 months and 17 days of qualifying service. During his last anniversary year, on 16 December 1997 he completed 20 years of continuous service in the Navy and Navy Reserve. Believing that he had 20 qualifying years, he stopped drilling at that time. He was honorably discharged at the expiration of his enlistment on 31 January 1999. At that time, he was serving as a petty officer second class (SK2; E-5). Apparently, he did not receive the subsequent letter from the Navy Personnel Command informing him that he did not have 20 qualifying years.
e.       Petitioner points out in his application, in effect, that he drilled until he completed 20 years of continuous service and should be credited with 20 qualifying years. The Board is aware that the regulations have changed and the anniversary year beginning date now remains the same as long as there is continuous service.
f.       The Board did not request an advisory opinion in this case. However, the Board is aware that the Navy Personnel Command has routinely recommended corrective action when an individual is qualified for reserve retirement and errors occurred which prevented retirement.
g.       The Board is aware that the Uniform Retirement Date Act, 5 U.S.C. 8301 requires that the effective date of any retirement be the first day of the month.
CONCLUSION:

Upon review and consideration of all the evidence of record the Board concludes that Petitioner’s request warrants favorable action. Petitioner clearly believed that he had 20 qualifying years when he stopped drilling. Since he would have qualified except for the change in the anniversary year, the Board concludes that the record should be corrected to show that he has 20 qualifying years. The best way to correct the record is to transfer sufficient retirement points from the excess over 50 in other anniversary year into the anniversary year ending on 28 May 1997, a year in which he has only been credited with 35 of the 50 retirement points necessary for a qualifying year. Therefore, the number of retirement points to be transferred is probably 15. However, the numbers of points can be adjusted as necessary if there are changes in the final computation. With this correction, Petitioner will have over 20 qualifying year.

 Petitioner was in good standing in the Navy Reserve and would have been retired if he was qualified and had requested it prior to the expiration of his enlistment. Therefore, the Board concludes that Petitioner should be transferred to the Retired Reserve in the grade of SK2. Given the requirements of the Uniform Retired Date Act, the retirement should be effective on 1 January 1999 vice the discharge of 31 January 1999 now of record.
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 Retired Reserve.











RECOMMENDATION:

a. That Petitioner’s naval record be corrected by transferring sufficient retirement points from the excess over 50 in prior anniversary years into the anniversary year ending on 28 May 1997 to make that year qualifying for reserve retirement.

b. That Petitioner’s naval record be further corrected to show that he transferred to the Retired Reserve in the rate of SK2 effective on 1 January 1999 vice the discharge of 31 January 1999 now of record.

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        AN E. GOLD MITH
Recorder         ting 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.



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