DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 .
BUG
Docket No: 6937-08
15 April 2009
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy ,
Sub): 42g
REVIEW OF NAVAL RECORD (RECONSIDERATION
Ref: (a) Tile 10 U.S.C. 1552
Encl: (1) BCNR file, docket numbers 5817-03 (Subject’s last
previous case) and 5214-98 (Subject’s initial case),
incl Subject’s naval record
(2) AGC (M&RA) memo dtd 11 Jul 08 w/encl (Subject’s ltr
dtd 5 Jun 08 w/encls)
(3) AGC (M&RA) ltr dtd 9 Oct 08
(4) BCNR rpt to GECNAV HD:hd Docket No: 05817-03 dtd
15 Dec 03 less encls
(5) Decision of US Court of Appeals (pc Cir)
No. 05-5471, decided 19 Jan 07
(6) PERS-911 memo dtd 10 Sep 08 w/encl
(7) PERS-80 memo dtd 7 Oct 08 ,
(8) Subject’s ltr dtd 31 Dec 08 w/fencl (Memo for Exec
Dir, BCNR w/encls)
(9) Ltrs of recomm
4. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed written
application, at enclosure (1), which this Board denied on ¢”
17 June 1999 and 11 December 2003. He again requests removing
his failures of selection by the Fiscal Year 1995 and 1996 Naval
Reserve Line Commander Selection Boards; setting aside his
discharge of 1 August 2001, thereby allowing him to participate
as a member of the Navy Reserve; and granting him constructive
satisfactory service, for purposes of eligibility for a reserve
pension, since 1995. In the alternative, he now requests
transfer to the Navy Reserve Retired List with 20 years of
satisfactory service. The Assistant General Counsel (Manpower
and Reserve Affairs) (AGC (M&RA)) has issued the memorandum at
enclosure (2), directing that a new panel of the Board
reconsider Petitioner's case in light of the information in the
enclosure to the memorandum, Petitioner’s letter of 5 June 2008.
The AGC (M&RA) also issued the letter at enclosure (3) advising
Petitioner he had directed that a new examiner be assigned to
the case. Pursuant to the ingtruction of the AGC (M&RA), a new
exaniner, @ iii been assigned.
2. An entirely new panel of the Board, consisting of Messrs.
Fales, Grover and Washington, reviewed Petitioner’s allegations
of error and injustice on 9 April 2009, and pursuant to its
regulations, determined that relief should be denied.
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 which were available under existing law
and regulations within the Department of the Navy.
b. Enclosure (1) was filed in a timely manner.
¢. Enclosure (4) is the Board’s report in Petitioner’s most
recent previous case, a reconsideration directed by the AGC
(M&RA). It shows that on 20 January 2004, the AGC (M&RA)
approved the Board’s recommendation to deny relief.
ad. Enclosure (5) is the decision of the U.S. Court of
Appeals (District of Columbia Circuit) in Petitioner’s case,
affirming the district court’s grant of summary judgment for the
Navy. Petitioner's letter of 5 June 2008 asserts the court made
a finding that “the Navy violated their own regulations for
annual screening.” However, the footnote on page 10 of the
decision says “We do not reach the issue of whether the Navy
violated its own screening reguiations because, even assuming
that the Navy failed to timely screen [Petitioner] for transfer
to inactive status, nothing in the statute or the regulations
mandates immediate transfer to inactive status after screening.”
e. In correspondence at enclosure (6), PERS-911, the Navy
Personnel Command (NPC) office with cognizance over Navy Reserve
personnel administration, commented to the effect Petitioner's
current petition should be denied as they still find no evidence
of error or injustice committed by the Navy.
£. In correspondence at enclosure (7), PERS-80, the NPC
office having cognizance over Navy Reserve officer promotions,
recommended “retaining” the 20 December 2007 action of the
Board's staff, to deny reopening Petitioner’s case, and the
adjudication by federal court. —
g. Enclosure (8) is Petitioner's reply to enclosures (6)
and (7).
h. Enclosure (9) comprises numerous letters of
recommendation submitted on Petitioner's behalf.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
in concurrence with the advisory opinion at enclosure {6), the
Board once again finds relief should be denied. Accordingly,
the Board's recommendation is as follows:
RECOMMENDATION :
a. That relief be denied.
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. ASALMAN JONATHAN S&S. RUSKIN
Recorder Acting Recorder
5. The foregoing report of the Board is submitted for your
review and action.
NEE
W. DEAN PFE R
Reviewed and approved:
QAQdE G&.
la-A- O49
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