DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX

WASHINGTON DC 20370-51 ORG

Docket No: 4608-07
20 December 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

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

 

1. Pursuant to the provisions of reference (a), Petitioner, a
former commissioned officer in the Navy Reserve, filed an
application with this Board requesting, in effect, that his
record be corrected to show that he has 20 years of qualifying
service and transferred to the Retired Reserve and to the Retired

List vice being discharged.

2. The Board, consisting of Mr. gta Mr. eulillliieeand Ms.
reviewed Petitioner's allegations of error and
injustice on 11 December 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 applied to this Board contending that there
were errors in his retirement point record and if they were

corrected that he would have 20 qualifying years and would be
eligible for reserve retirement. His record was then sent to the
Navy Personnel Command (NPC) to correct any errors and to provide
an advisory opinion as to the disposition of his case. Attached
to enclosure (1) is the advisory opinion from the NPC which

states, in part, as follows:
... We have reviewed [Petitioner's] record and the
documentation he provided and have credited him with an
additional seven retirement points to make his
anniversary year ending on 13 April 1976 a qualifying
year. However, the active duty points that he states
are missing from his anniversary year ending 14 April
1973 were actually performed in, and have been properly
credited to, the anniversary year ending 14 April 1974.
(He performed two AT [Annual Training] periods during
the April 1973 - April 1974 anniversary year - one in
June 1973, the other in March 1974). Accordingly,
[Petitioner] is now credited with only 19 years of
qualifying service and is still not eligible for a

Reserve retirement.,..

... [Petitioner] was commissioned in April 1968 and
served on Active Duty[Sic] until January 1972. He then
drilled and performed Annual Training (AT) in the Navy
Reserve until September 1990, at which time he
transferred to the Individual Ready Reserve (IRR) and
ceased all participation...we notified [Petitioner] in
1998 that his retention period had expired, that he had
not qualified for retirement, and therefore, must be
discharged. Again, [Petitioner] did not contact us
regarding this matter and he was discharged effective

30 June 1998.

...He ceased all participation and communication with
the Navy in the fall of 1990 (during Operation Desert
Shield/Desert Storm) and when we notified him in 1995
that he had not yet qualified for retirement, he did
not contact us to try to correct his record at that

time.

-..After reviewing his record and in view of the above,
we recommend [Petitioner's] petition be denied. Even
with the correction of his retirement point record, he
is still not credited with 20 qualifying years of

service and, therefore, is not eligible for a Reserve

[Sic] retirement...

d. A review of the corrected Statement of Service for
Reserve Retirement, dated 27 June 2007, shows anniversary years
with 45, 49, 39 and 36 retirement points. Fifty points in any of
those four years would make him eligible for reserve retirement.

e. In his rebuttal to the advisory opinion, Petitioner has

submitted documentation which appears to show that there are
other retirement points that have not been credited. However, if

he entitled to those points his retirement point record can be
administratively corrected and action by the Board on this matter
is not required. It does not appear that any of those points
will be credited in any anniversary year in which he has less
than 50 retirement points. So the number of qualifying years

will not change.

f. There is no information in the record concerning
Petitioner's motivation to stop drilling in 1990. It is possible
that he thought he had 20 years of qualifying service at that
time. Given the action taken by NPC, it is clear that there were
some errors in the recording of retirement points. The record
shows that Petitioner was born on 27 May 1946 and he became 60

years of age on 27 May 2006.

f. 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. Since he is only one point short of qualifying for
retirement and may have believed that he had 20 years of
qualifying service in 1990, the Board concludes that the record
should be corrected to show that he is eligible for reserve
retirement. This action can be accomplished by transferring one
retirement point from the excess over 50 in the anniversary year
ending on 14 April 1974 into the anniversary year ending on 14
April 1975. With this correction, he will have 20 years of
qualifying service for reserve retirement.

Since Petitioner will now have 20 years of qualifying service and
was otherwise in good standing, the Board further concludes that
his record should be corrected to show that he transferred to the
Retired Reserve. Since he had no participation in the Navy
Reserve after 14 April 1991 and given the requirements of the
Uniform Retirement Date Act, the Board further concludes that the
retirement should be effective on 1 May 1991 (the earliest
possible date after completion of 20 years of qualifying service)
vice the discharge on 1 July 1998 now of record.

Since he is now 60 years old, the record should be further
corrected to show that he transferred to the Retired List on

27 May 2006, 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 by transferring
one retirement point from the anniversary year ending on 14 April
1974 to the anniversary year ending on 14 April 1975.

b. That Petitioner's naval record be further corrected to show
that he transferred to the Retired Reserve on i May 1991 vice the

discharge of 1 July 1998 now of record.

c. That Petitioner's naval record then be corrected to show that
he transferred to the Retired List on 27 May 2006, 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 BRIAN ‘) GEORGE
Recorder Acting Recorder

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

review and action.

Leas /
W. DEAN P
Reviewed and approved:
Tv
SX C&L
\-"\- O68

ROBERT T. CALI

Assistant General Counsel
(Manpower and Reserve Affairs)