DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX

WASHINGTON DC 20370-5100
TRG

Docket. No: 1831-07
25 July 2008

 

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

  

Subj: | REVIEW OF NAVAL RECORD OF -§

Ref: (a) Title 10 U.S.c. 1552

Encl: (1) Case Summary
(2) Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner, a
former member of the Navy Reserve, filed an application with this
Board requesting that he be transferred to the Retired Reserve
under the provisions of the Reserve Transition Benefits (RTB)
program. He further requests transfer to the Retired List

effective on his 60th birthday.

 

2. The Board, consisting of Mr 43g Ms. Wiis, and mr.
UN veviewed Petitioner's allegations of error and
injustice on 8 July 2008 and, pursuant to its regulations, the
majority of the Board, Mr. Boyd and Ms. LeBlanc, 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 Chaplain Corps on 10
March 1983. He then earnea 17/ consecutive qualifying years for
reserve retirement purposes. In the anniversary year ending on 9
March 2001 he was only credited with 45 of the 50 retirement
points needed for another qualifying year. The next anniversary
year is qualifying which raised his total to 18 qualifying years.
The next four years are not qualifying, however, in one of those
years he has been credited with 39 retirement points.
Petitioner, while serving in the garde of commander (CDR),
reached his 60th birthday on 10 September 2006 and since he was
not eligible for reserve retirement he was honorably discharged

on that date.

d. Petitioner contends in his application that he was not
properly advised of the provisions of the Reserve Transition
Benefits (RTB) program when he was removed from drill pay status
and transferred to a Volunteer Training Unit on 30 September
1999. He points out that early retirement was available for
individuals with more than 15 years of qualifying service and
that he had 17 years of such service at the time.

e. Attached to enclosure (1) is an advisory opinion from
the Navy Personnel Command which states, in part, as follows:

...ToO receive RTB, the member had to have been
involuntarily removed from a pay billet after being in
a pay status for at least one year; there had to be no
further pay billets available or offered for the member
to fill; the application for RTB had to be made by the
member within 40 days of removal from billet; and
applications had to be reviewed by Navy Reserve Forces
Command to ensure other pay billets were not available

worldwide...

...To our knowledge, there was no requirement placed on
Reserve managers to brief members being ordered out of
Selected Reserve billets about the RTB Program;
however, it was a well-known option by 2000, having
been in effect since 1992. It is, therefore, difficult
to support a petition based simply on the fact that the
member “wasn't made aware" of this option by a center

commanding officer.

...Members frequently opted not to take RTB and,
instead, remained in the Navy Reserve Program to
continue being considered for promotion, compete for
future Selected Reserve billets, increase retirement
benefits at age 60, and complete time-in-grade

requirements.

...In view of the above, were are reluctant to
retroactively endorse - seven years after the fact -
RTB eligibility, particularly when we see several
missed opportunities to complete qualification for
retirement. Unless the individual can provide
overwhelming documentation to prove his case, we cannot
support his petition...
f. Petitioner points out in his rebuttal that he served in
an excellent manner, was promoted to commander and spent many
hours in voluntary activities in support of service members.

MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record, the
majority, consisting of Mr. Boyd and Ms. LeBlanc, do not disagree
with the comments contained in the advisory opinion concerning
the RTB program. However, they note Petitioner's many years of
excellent service and that he has 18 years of qualifying service
for retirement. Since he only missed qualifying for retirement
by five retirement points in the anniversary year ending on 9
March 2001 and 11 retirement points in the anniversary year
ending on 9 March 2003 the majority believes that the record
should be corrected by transferring sufficient points into the
two years at issue so that he will have 20 qualifying years. The
record should then be corrected to show that he transferred to

the Retired Reserve and the Retired List.

The majority further concludes that this Report of Proceedings
should be filed in Petitioner's naval record so that all future

reviewers will understand Petitioner's retirement status.

In view of the foregoing, the majority finds the existence of an
injustice warranting the following corrective action.

MAJORITY RECOMMENDATION:

a. That Petitioner's naval record be corrected by transferring
16 retirement points from the excess over 50 in prior anniversary
years into the anniversary years ending on 9 March 2001 and 9
March 2003 to make those two years qualifying for retirement.

b. That Petitioner's record be further corrected to show that he
transferred to the Retired Reserve in the grade of CDR on 1 March
2006 and to the Retired List on his 60th birthday, 10 September

2006.

c. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.

MINORITY CONCLUSION:

Mr. Pfeiffer disagrees with the majority and concludes that
Petitioner's request does not warrant favorable action. He notes
that Petitioner was a long time member of the Navy Reserve
serving in the grade of CDR and believes that he knew or should

have known the requirement necessary to qualify for reserve
retirement. Mr. Pfeiffer also notes that Petitioner has been
treated no differently than many others who have failed to
qualify for reserve retirement based on a few years with less

than 50 retirement points.

In view of the foregoing, the minority essentially agrees with
the comments and recommendation contained in the advisory opinion
that reserve retirement in this case is not warranted.

MINORITY RECOMMENDATION:
a. That Petitioner's request be denied.
4. It is certified that a quorum was present at the Board's

review and deliberations, and the foregoing is a true and
complete record of the Board's proceedings in the above entitled

matter.

ROBERT D. ZSALMAN BRIAN Deon cron

Recorder Acting Recorder

5. The foregoing report of the Board is submitted for your

review and action.

W. DEAN PFE

MAJORITY REPORT:
eviewed and approved:

“. Gd:

B-S-0O8

MINORI REPORT:
Revieyéd and approved: