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NAVY | BCNR | CY2007 | 02583-07
Original file (02583-07.rtf) Auto-classification: Approved

DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370510


                                    T RG
Docket No: 2583-07
          2 May 2007

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
End:     (1) Case Summary
 (2)      Subject’s naval record
1.       Pursuant to the provisions of reference (a), Petitioner, a former enlisted member in the Naval Reserve, filed an application with this Board requesting that his record be corrected to show that he was qualified for reserve retirement and transferred to the Retired Reserve and the Retired List, vice being discharged.
         2.       The Board, consisting of Mr.     Mr.
 reviewed Petitioner’s allegations of error and injustice April 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.       On 23 April 1970 Petitioner was discharged from the Navy Reserve for the purpose of enlisting in the Regular. Navy. He reenlisted in the Regular Navy on 24 April 1970. At that time he was credited with 11 years, 9 months and 6 days of qualifying service for reserve retirement purposes.
d.       Petitioner then served on active duty in the Regular Navy for more than 10 years and was honorably discharged on 27 January 1981. During his service he was advanced to petty
 o fficer first class (AT1; E-6). At the time of his discharge, he had completed 21 years, 6 months and 10 days of qualifying service for reserve retirement.



e.       Petitioner reenlisted in the Navy Reserve on 28 February 1981 and then earned three additional qualifying years. He was honorably discharged on 27 August 1984. He reached his 60th birthday on 2 September 2000.
f.       At the time of Petitioner’s discharge, he was not eligible for reserve retirement because the law in effect at that time required that the last eight years of qualifying service be served in the reserve component. As indicated, Petitioner only had the last three years in the reserve component. The current version of the law has deleted this requirement.
g.       Petitioner points out in his application that he has over 20 years of qualifying service, but he was not told that the last eight years of qualifying had to be served in the reserve component. He asserts that if he had been so informed, he would have remained a member of the Navy Reserve.
h.       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 to show that a member transferred to the Retired Reserve if he was qualified for retirement but was inadvertently discharged and not retired.
i.       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 was in good standing in the Navy Reserve and would have been retired if had completed the last eight years of qualifying service in the reserve component. This type of case is not unusual and the lack of knowledge of the eight year requirement was apparently widespread. Accordingly, corrective action to show eligibility for reserve retirement has been routinely recommended.
Since Petitioner is otherwise qualified, his record should be corrected to show that on 24 April 1970 he reenlisted in the Naval Reserve and served in that component until his honorable discharge on 27 August 1984. The fact that he served on active duty is irrelevant to retirement eligibility. With this correction, he will be eligible for reserve retirement. Since he was in good standing in the Navy Reserve, he would have been retired if he was qualified and he 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 rate of AT1. Given the requirements of the Uniform Retirement Date Act, the retirement should be effective on 1 August 1984 vice the discharge of 27 August 1984 now of record.

Since Petitioner is now 60 years of age, the record should be further corrected to show that he transferred to the Retired List effective on 2 September 2000,his 60th birthday.

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 to show that on 24 April 1970 he reenlisted in the Naval Reserve and served in that component until his discharge on 27 August 1984.

b. That Petitioner’s naval record be further corrected to show that he transferred to the Retired Reserve in the rate of AT1 effective on 1 August 1984 vice the discharge of 27 August 1984 now of record.

c. The record should then be corrected to show that he transferred to the Retired List on 2 September 2000, his 60th birthday.

d. 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. GOLDS ITH
Recorder         Acting 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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