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NAVY | BCNR | CY2007 | 06945-07
Original file (06945-07.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

Docket No:6945-07
14 December 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) BCNR decisional document dated, 5 January 2007
(2)      Subjects naval record


1.       Pursuant to the provisions of reference (a), Petitioner, filed an application with this Board requesting that his record be corrected to show that he is qualified for reserve retirement:
 and transferred to the Retired Reserve.
2.       The Board, consisting of M s , Mr. and Mr. reviewed Petitioner’s allegations of error an injustice on 4 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.       Petitioner’s application was filed in a timely manner.
c .       The Board previously considered Petitioner’s case. A copy of the Board’s decisional document is at enclosure (1). In connection with the earlier review, the Board obtained an advisory opinion, which stated, in part, as follows:


•        . . Because his record showed that he had only eleven
 years of qualifying service at that time, he was
honorably discharged from the Navy Reserve on 1 October
2003.
We have reviewed the paperwork [ Petitioner] provided with his petition and have updated his record.. . to show 16 qualifying years of service and a total of 1199 points. Accordingly, if he were still in an active status, he would be eligible to be considered for continuation to 24 years of commissioned service.

Unfortunately, [Petitioner] waited too long (almost three years) to correct his record. Because he was commissioned at a late age, and he had some years of inactivity, even if [he] requests and is approved for reinstatement and continuation in the Navy Reserve, he would still be unable to earn a Reserve Retirement before his required separation at age 62. There are no provisions in the law or policy to allow his retention past that age limit.
A cordingly, we recommend [Petitioner’s] petition be denied
d.       Petitioner rebutted the advisory opinion stating, in part, as follows:
•        . 1 was improperly separated from the USNR in October 2003. With 16 (or 17) satisfactory] years, I should not have been discharged.. . Since I should actually still have been in [an] active status, I request the Board properly allow me to continue to complete 20 retirement years of service.
Petitioner also stated that he is a qualified Strategic Debriefer in support of Office of Naval Intelligence (ONI) and the Defense Intelligence Agency (DIA) and has a current TS/SBI clearance. Further, several directorates at DIA have made by-name requests for his services.
e.       Since an error occurred, the Board concluded during the first review that three retirement points should be transferred from the excess over 50 in prior anniversary years into the anniversary year in which he had 47 retirement points, thus raising his total qualifying years to 17. The Board declined to make further corrections to his retirement point record believing that he should make at least some effort to earn his retirement. The Board then concluded that since an error occurred and he had 17 years of qualifying service the record should be further corrected to show that he was continued to complete 24 years of commissioned service.



f.       Petitioner’s record now shows that he reported for Annual Training Duty at DIA on 2 July 2007 and was detached on 10 August 2007, a period of 40 days. A statement of service for reserve retirement has been obtained and shows the 40 retirement points and 15 membership points which means that at the end of his anniversary year on 23 September 2007 he now has 18 years of qualifying service.
CONCLUSION:
Upon review and consideration of all the evidence of record the Board concludes that Petitioner’s request warrants favorable action. Given the original error in the case, the action taken in the previous case and Petitioner’s completion of another qualifying year, the Board now concludes that his record should be corrected to show that he is eligible for reserve retirement.
This action can be accomplished by transferring 35 retirement points from the excess over 50 in other anniversary years into each of the anniversary years ending on 23 September 2005 and 23 September 2006. With this correction, Petitioner will have 20 years of qualifying service.
Petitioner’s record should then be corrected to show that he transferred to the Retired Reserve on 1 October 2007 in the grade of LCDR, vice being discharged at any time prior to that date. Petitioner will not be age 60 until 20 June 2008 and action to transfer him to the Retired List is not warranted.
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 his status in the Navy Reserve.
RECOMMENDATION:
a. That Petitioner’s naval record be corrected by transferring
35 retirement points from the excess over 50 in prior anniversary
years into each of the anniversary years ending on 23 September
2005 and 2006.
b. That Petitioner’s record be further corrected to show that he transferred to the Retired Reserve in the grade of LCDR effective on 1 October 2007 vice being discharged at any time prior to that date.
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        BRIAN J. GEORGE
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.



                  W. DEAN PFIEFFER
          Executive Director




























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