DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TRG
Docket No: 3674-07
25 July 2007
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: REVIEW OF NAVAL RECORD OF 9am
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
retired former member of the Marine Corps, filed an application
with this Board requesting that this record be corrected to show
that he retired with 20 years of active service in order to allow
concurrent retirement and disability pay (CRDP).
2. The Board, consisting of Mr ie. Ms. (ie
yreviewed Petitioner's allegations of error and injustice on
17 July 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 consider the application on
its merits.
c. Petitioner reenlisted in the Marine Corps for the last
time on 15 December 1989. On 1 April 1993 he was promoted to
master sergeant (MSGT; E-8). Subsequently, because of liver
failure, he was forced to undergo a liver transplant and was
later processed for disability retirement. on 16 April 1993 he
was transferred to the Temporary Disability Retired List (TDRL) .
At that time, he had completed 19 years, 11 months and 28 days of
active service. He was permanently retired on 9 April 1997.
d. At the time of his separation from active duty,
Petitioner was entitled to retired pay from the Marine Corps
based on 20 years of active and constructive service. However,
this payment was offset by payments from the Department of
Veterans Affairs (VA). In 2004 the law changed to allow
concurrent receipt of disability retired pay and VA compensation
for certain severely disabled retirees. The law allows those
members with retirement based on 20 years of service to receive
VA and retirement compensation at the same time without offset.
CRDP for everyone else will be phased in over 10 years. As
indicated, Petitioner was retired two days short of 20 years and
is not eligible for CRDP.
CONCLUSION:
Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action. It is clear that Congress enacted the 20 year
requirement to recognize severely disabled individuals who
retired with 20 years of service. Since Petitioner is so close
to having 20 years of active service, and certainly would have
been retained for the additional: two days if CDRP had been in
effect at the time, the Board concludes that corrective action is
appropriate in this case. Therefore, Petitioner's record should
be corrected to show that he transferred to the TDRL on 18 April
1993 vice the transfer of 16 April 1993 now of record. With this
correction, he will be retired with 20 years of active duty.
However, he will still be required to meet the other requirements
in order to be eligible for CRDP.
The Board further concludes that this Report of Proceedings
should be filed in Petitioner's naval record so that all future
reviewers will understand the reasons for the change in the
retirement date.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that
he transferred to the TDRL on 18 April 1993 vice the transfer on
16 April 1993 now of record.
b. 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. 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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