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NAVY | BCNR | CY2007 | 11293-07
Original file (11293-07.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20310-5 100


 TRG
 Docket No:11293-07
 4 April 2008
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj :

Ref:     (a) Title 10 U .S.C. 1552
En cl :    (1) Case Summary
                   (2) Subject’s naval record
1.       Pursuant to the provisions of reference (a), Petitioner, a former member of the Marine Corps Reserve, filed an application with this Board requesting, in effect, that his record be corrected to show that he transferred to the Retired Reserve and to the Retired List vice being discharged on 12 January 1999.
2.       The Board, consisting of Mr. Mr. and Mr. reviewed Petitioner’s allegations of error and injustice on 1 April 2008 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 wa s promoted to master gunnery sergeant (MGySgt; E-9) on 1 January 1997. On 13 January 1997 he reenlisted for two years. On 7 June 1997, he transferred to the Individual Ready Reserve and earned no further qualifying years. He was honorably discharged at the expiration of the two year enlistment on 12 January 1999. At that time he was credited with 24 years, 11 months and 18 days of qualifying service for reserve retirement.
c.       The Board did not request an advisory opinion in this
 case. However, the Board is aware that Headquarters Marine Corps has routinely recommended corrective action when an individual is qualified for reserve retirement and errors occurred which prevented retirement.
d.       It is required that an individual in Petitioner’s grade earn two qualifying years after being promoted in order to retire in the higher grade. It appears that Petitioner did not earn any qualifying years after his promotion on 1 January 1997.
e.       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 Marine Corps Reserve and would have been retired if he had requested it in sufficient time prior to the expiration of his enlistment. Therefore, the Board concludes that Petitioner record should show that he transferred to the Retired Reserve. Given the requirements of the Uniform Retirement Date Act, the retirement should be effective on 1 January 1999, vice the discharge of 12 January 1999 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 14 September 2007.
Since Petitioner did not earn two qualifying years in grade, it appears that he must be retired in pay grade E-8. However, the issue of the grade on retirement should be made by Headquarters Marine Corps as part of the normal process in cases such as this.
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 and on the Retired List.
RECOMMENDATION:
a. That Petitioner’s record be corrected to show that he transferred to the Retired Reserve effective on 1 January 1999 vice the discharge of 12 January 1999 now of record. His record should then be corrected to show that he transferred to the Retired List on 14 September 2007, his 60th birthday.
b. That this Report of Proceedings be tiled 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 PFEIFFER
          Executive Director

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