DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX TRG
WASHINGTON DC 20370-5100 Docket No: 10453-08
‘ 14 May 2009
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10 of the United
States Code section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 12 May 2009. Your allegations of error and
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board. Documentary material considered by the Board consisted of
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies.
After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.
Your record shows that you were promoted to colonel (COL; O-6) on
1 August 1993. The law requires that you earn three qualifying
years in order to retire in that grade. On 22 February 1996 you
received nonjudicial punishment (NJP) for violations of Articles
92, 128 and 133 of the Uniform Code of Military Justice. The
punishment imposed was a punitive letter of reprimand.
In his letter reporting the NUP the Commander, Marine Forces
Reserve stated as follows:
.. After the imposition of [NJP, you] submitted an
application for transfer to the retired reserve without
pay effective 1 October 1996...
... After careful consideration of all the evidence in
this case, I recommend that [your] retirement request
be accepted. I believe [your] expeditious retirement
will best serve the interest of the Marine Corps.
...l recommend that a show cause determination be held
in abeyance and [you] not be required to appear before
a Board of Inquiry to show cause as to whether [you]
should be retired at his present grade or the next
inferior grade. Should [you] withdraw [your] request
for voluntary retirement, then I recommend [you] be
made to show cause to determine whether [you] should be
retired at [your] present grade or the next inferior
grade...
If you had retired at that time, you would have met the
requirement of three qualifying years in grade.
However, you did not retire. Your record shows that on 4 April
1997 you requested transfer to the Retired Reserve. It states in
an endorsement to this request as follows:
.. [You] received Article 25 [NJP] from the Commander,
Marine Forces Reserve and has been held in this unit
until all pending actions were complete. Although
actions have been complete for months, [you] did not
submit [your] request for retirement in a timely
fashion, probably in order to further delay [your]
retirement. It does not serve the needs of this
Command nor the Marine Corps to delay [your] retirement
further...
Your retirement from the Marine Corps Reserve was effective on 1
August 1997.
In your last full anniversary year which ended on 8 June 1997 you
have only been credited with 45 of the required 50 retirement
points to make that complete anniversary year qualifying. The
only way a partial anniversary year can be credited is if there
is a discharge or retirement during that year. Since this did
not occur the entire anniversary year which began on 9 June 1996
is not qualifying. Since you had to have qualifying service
until 1 August 1996 to complete the three years in grade
requirement, you were retired in the grade of lieutenant colonel.
You state in your application that it was the intent of the
Marine Corps to retire you as a colonel effective on 1 October
1996. You contend that the Marine Corps' failure to process your
retirement on 1 October 1996 caused you to accrue another
anniversary year which is not qualifying. You point out, in
effect, that you only needed to earn sufficient retirement points
to make the period from 9 June 1996 until 1 October 1996
qualifying and you earned 45 retirement points. You further
state that when the Marine Corps discovered that they had not
retired you on 1 October 1996 they then processed your retirement
at the lower grade of lieutenant colonel.
As indicated the record shows that you had an agreement with the
Commander, Marine Forces Reserve to retire on 1 October 1996 in
order to avoid a Board of Inquiry. The Board believed that if
that Board had been held you would have been retired in the grade
of lieutenant colonel.
You did not retire on 1 October 1996 and the endorsement to your
later retirement request indicates that you were deliberately
delaying your retirement. The Board believed that you had an
obligation to ensure that you were retired on 1 October 1996 and
the record suggests that your failure to do so was deliberate.
Since you agreed to retire on 1 October 1996 and did not, the
Board concludes that the record should not be corrected to show
that you retired as a colonel on 1 August 1997.
Accordingly, your application has been denied. The names and
votes of the members of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such that
favorable action cannot be taken. You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.
Sincerely,
met PR
ROBERT D. ZSALMAN
Acting Executive Director
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