DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX TRG
WASHINGTON DC 20370-5100 Docket No: 8098-08
4 January 2009
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj EVIEW OF NAVAL RI
Ref: (a) Title 10 U.S.C. 1552
Encl: (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 vice
being discharged on 26 September 1994.
._ The Board, consisting of Mr. Cae. Mr Wim and Ms.
ais Be aeevyiewed Petitioner's al egations of error and
stice on 27 January 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 it appears that Petitioner's application was
not filed in a timely manner, it igs in the interest of justice to
waive the statute of limitations and consider the application on
its merits.
c. Petitioner reenlisted in the Marine Corps Reserve on 27
September 1992 for two years. On 1 January 1993 he was promoted
to First Sergeant (lstSgt; paygrade E-8). Regulations in effect
at the time and in effect now require that an individual earn two
qualifying years in grade in order to be able to retire at the
higher grade., At the end of his anniversary year on 7 Born 1294
he was credited with 21 consecutive qualifying years for reserve
retirement. Subsequently, he was allowed to exti.end his
enlistment for three months. ‘The next entry in the record shows
that he was honorabiy discharged on 26 December 1994 at the
expiration of his enlistment as extended. On 25 October 1995 he
60. Petitioner will not be 60 years old and eligible for retired
pay until 19 September 2014.
d. 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 was discharged rather than
transferred to the Retired Reserve.
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. He 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 his 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 December 1994 vice the discharge of 26 December
1994 now of record.
Concerning the issue of his grade on retirement it is clear that
he had to serve until 31 December 1994 in order to complete two
years of service in grade as a IstSgt. However, he did not earn
sufficient retirement points in that last partial anniversary
year to make that year qualifying. Therefore, an extension of
his enlistment for one month would serve no purpose.
Since Petitioner did not complete the required two years
qualifying service needed to retire as a IstSgt then he must be
retired in the grade of gunnery sergeant (GySgt; paygrade E-7).
However, if it can be established in the future that he actually
earned sufficient retirement points or he believes that an
injustice has occurred he may reapply to the Board to change the
number of retirement points and the date of his retirement to 1
January 1995.
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 in the grade of GySgt
effective on 1 December 1994, vice the discharge of 26 December
1994 now of record.
b. 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 ‘ 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.
\p Ras
W. DEAN PFEIF
Executive Dire
\
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