DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 07633-08
27 October 2009
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
5 iy
Subj: FORMER agers oer:
REVIEW OF NAVAL RECORD
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149
(2) Subject's naval record
1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed enclosure {1) with
this Board requesting, as amended, that his naval record be-
corrected to show that he wag retired by pursuant to the
Temporary Early Retirement Authority vice discharged by reason
of physical disability.
>. The Board, consisting of Messrs. sm ee
reviewed Petitioner's allegations of error and injustice on 16
October 2009 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 the application was not timely filed, the Board
finds it to be in the interest of justice to waive the statute
of Limitations and consider the application on the merits.
c. On 4 January 1995, the Physical Evaluation Board found
Petitioner unfit for duty due to coronary artery disease rated
at 30% disabling under Department. of yeterans Affairs (VA) code
7005. He was advised by the President, PEB, on 6 January 1995,
in effect, that he was being placed on the Temporary Disability
Retired List (TDRL) with a rating below 30%, he might be
entitled to elect either retirement under TERA or separation
with entitlement to disability severance pay. He was released
from active duty on 30.May 1995 and transferred to the TDRL
having completed 17 years, 5 months and 29 days of active
service. The VA rating eriteria for cardiovascular digeasé was
substantially modified during Petitioner’s tenure on the TDRL
schedule was modified; consequently, the PEB reduced his final
rating below 20% on 13 June 2000. He was discharged by reason of
physical disability with entitlement to severance pay on 29
September 2000 in accordance with the approved findings ef the
PEB. .
a. The Temporary Early Retirement Authority (TERA) was
authorized by the 1993 National Defense Authorization Act, and
_remained in effect until 1 September 2002. Although not an
entitlement, TERA provided for the early qualification for
retired pay of selected military personnel who had completed
petween 15 and 20 years of service whose applications for TERA
retirement were approved based on the needs of the service. In
addition, DoD Instruction 1332.38 provided, in part, that
service members with between 15 and 20 years of active service
who were pending discharge by reason of physical disability were
to be notified of their eligibility to apply for retirement
pursuant to TERA.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that there were two major factors which —
contributed to Petitioner’s decision to accept transfer to the
TDRL in lieu of requesting transfer to the Fleet Reserve under
TERA: he had no reason to believe that the rating criteria for
his disability would be changed while he was on the TDRL and
that his disability rating would fall below 30% as a result of
those changes, and that the advice he received from the
President, PEB, on 6 January 1995 suggested that he would have
the opportunity to apply for TERA in the event his rating fell
below 30%. Unfortunately, the rating criteria did change, and he
was not given the opportunity to apply for TERA in 2000.
Accordingly, and in view of Petitioner’s lengthy period of naval
service, the Board finds the existence of an injustice which
warrants the following, corrective action.
RECOMMENDATION
a. That Petitioner's naval record be corrected to show that
he was not discharged from the Navy on 29 September 2000, and
that it be further corrected to show that he transferred to the
Fleet Reserve effective 1 June 2000, the day following his
completion of five years on the Temporary Disability Retired
List, pursuant to the Temporary Early Retirement Authority then
in effect.
b. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.
A. Pursuant to Section 6(c) of the revised Procedures of the
Board for Correction of Naval Records (32 Code of Federal
Regulations, Section 723.6(¢c)) 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,
y,fZe-—=
ROBERT D. ZSALMAN ES R. EXNICIOS
Recorder ; cting 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.
Oe
IRAE
Executive Rirector
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