DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-8100 |
TRG
Docket No: 5889-08
31 July 2008
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
i. Pursuant to the provisions of reference (a}, Petitioner, a
former member of the Navy Reserve, filed an application with this
Board requesting, in effect, that his record be corrected to show
that he transferred to the Retired Reserve vice being discharged:
on 25 January 2007.
2. The Board, consisting of Mr. peepee Mr. Wee an3 Ms.
MURR. ev ewed Petitioner's at egations of error and
injustice on 29 July 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. Petitioner's application was filed ina timely manner.
c. Petitioner was recalled to active duty on 10 September
2005. At that time, he was serving as a petty officer second
Class (GM2; paygrade E-5). At the end of his anniversary year on
3 April 2006 he was credited with 22 years of qualifying service
for reserve retirement purposes. On 18 September 2006 he was
released from active duty with a recommendation for reenlistment.
The DD Form 214 issued at that time shows that he was a petty
officer first class, but the pay grade was entered as E-5,
d. On release from active duty, Petitioner did not report
to his reserve unit. Since he was not attending drilis, he was
processed for an administrative discharge. On 24 January 2007,
the commanding officer of the Navy Operational Support Center, El
Paso, Texas indicated that he was being discharged due to
unsatisfactory participation in the Navy Reserve. There is an
entry in his record showing that on 24 January 2007 he was issued
a general discharge.
e. Petitioner states in his application that he submitted a
request for retirement but that request was lost by the command.
He further indicates in his application that he was a petty
officer first class.
f. 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 when an
individual is qualified for reserve retirement and the
circumstances resulted in discharge rather than retirement.
g. 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 at
the time of his release from active duty on 18 September 2006 and
he had over 22 years of qualifying service at that time. It is
clear that he would have been retired after that date if he had
requested it in sufficient time to allow proper processing.
Therefore, the Board concludes that Petitioner's record should be
corrected to 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 2007. The retirement
action means that any entries in the record concerning separation
by reason of unsatisfactory participation after that date are
without force or effect.
There is no documentation in the record showing that Petitioner
was advanced to petty officer first class and the entry on the DD
Form 214 may be a typographical error. However, since there is
conflicting information as to his grade on retirement, the
decision as to his grade on retirement should be made by the Navy
Personnel Command (NPC).
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 record be corrected to show that he
transferred to the Retired Reserve effective on 1 January 2007,
. Vice the discharge of 24 January 2007 now of record.
b. That the determination as to his grade on retirement should
be made by NPC.
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 een) exonc!
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.
us
W. DEAN PF R
Executive Divettor
fo
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