DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 |
TRG

Docket No: 3776-09
10 June 2009

 

From: Chairman, Board for Correction of Naval Records {BSCNR)
To: Secretary of the Navy .

    

 

Sub]: REVIEW OF NAVAL BE
Ref: (a) Title 10 U.S.c. 1552
Enel: (1) Case Summary

1. Pursuant to the provisions of reference (a), Petitioner, a
retired Navy reservist, filed an application with this Board
requesting that his retirement date be changed from 1 January to
1 March 2009 to allow a period of active duty to be credited.

2. The Board, consisting of Mr. sje Ms. ie 226 Ms. ii

reviewed Petitioner's allegations of error and injustice on 2
June 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. Petitioner's application was filed in a timely manner.

c. Petitioner states in his application that in December
2008 he was informed that he was not a mandatory retiree and that
the command had no information stating that he was in such a
status. Accordingly he agreed to accept orders from his squadron
for the January Mediterranean Detachment and he reported to
active duty on 28 December 2008. He points out that during the
next month he flew out of Naval Air Station, Sigonella, Italy.
He states that the detachment was extended for several days to
accommodate return transportation requirements. While attempting
to modify his orders it was discovered that he was no longer
entered in the Navy Reserve Order Writing System because he had
been retired effective 1 January 2009. He notes that he has
been paid for December and January but other payments such as
leave and travel expenses have not been paid. Additionally, a
TRICARE claim has been rejected. His request for administrative
action to correct this problem which set forth the circumstances

that led to the improper issuance of the orders was favorably
endorsed by his command.

d. Attached to enclosure (1) is an advisory opinion from
the Navy Personnel Command (Pers 912) stating, in part, as
follows:

...in early 2008, we properly notified [Petitioner] of
his required separation on 1 January 2009, due to
multiple failures of selection for promotion to the
grade of Commander [sic] and completing 20 years of
actual commissioned service. Separation actions are
required per reference (b) [Title 10, U.S. Code,
Section 1407] which specifies either retirement or
discharge. Our records show that [he] did not respond
to correspondence... by the directed separation date of
31 December 2008. Accordingly... we correctly
transferred [him] to the Retired Reserve effective 1
January 2009 and notified him of such action...

...NOSC [Navy Operational Support Center], Atlanta
evidently advised that he was not on their mandatory
retirement list and than he was not required to retire.
Even though [Petitioner], as well as Fleet Logistic
Support Squadron Four Six and NAS [Naval Air Station]
Atlanta, had been notified by Navy Personnel Command of
his mandatory separation, no one chose to contact Navy
Personnel Command (PERS-911) on this matter. Our
telephone number is in the notification letter for the
specific reason of addressing such questions. Instead,
it appears everyone, including [Petitioner}, ignored
the official notification from Navy Personnel Command.
Voluntary ADT [Active Duty for Training] orders for 38
days were inappropriately requested by [Petitioner]

and issued by the Navy, commencing on 28 December 2008.

...Because of this error, we expect BCNR will grant
[Petitioner] relief to receive points and compensation
for the time served after his mandatory retirement date
of 1 January 2009. However, we believe that in spite
of the errors committed, his petition should be denied
in view of all the correct information provided to both

the command and [Petitioner]. These 38-day orders were
not involuntary; rather they were voluntarily requested
by [Petitioner]. In our judgment, they are last minute

actions, justified by voluntary ignorance, to game an
_order-writing system at the end of a career, for
financial gain. For this reason, we cannot support
[Petitioner's] petition...
e. Petitioner states in his rebuttal to the advisory
opinion that he never received the notification letters mentioned
in the advisory opinion. When he was told that the NOSC had
nothing either, his command asked him to take the detachment
because of a shortage of pilots. He points out that he flew
several missions, and as Aircraft Commander, was responsible for
the safe and efficient operation of his airplane and crew.
Further, since he was retired effective 1 January 2009, the
Defense Finarice and Accounting Service now considers him to be
indebted for the amounts paid to him in January 2009. Finally,
he takes exception to the implication that there was some form of
fraudulent behavior on his part, noting that he could have made
about the same amount of money in less time at his civilian
employment and would not have had to be away from his family over
the New Year's holiday.

f. 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. It is clear that he should not have been issued orders.
However, his version of events which led to the issuance of those
orders is certainly plausible and his request for administrative
action was favorably endorsed by his command. Therefore, since
he performed his duties the Board believes that he should receive
pay and allowances.

Therefore, Petitioner's record should be corrected to show that
he was not retired on 1 January 2009 but remained on active duty
until he was released on or about 5 February 2009. Given the
requirements of the Uniform Retirement Date Act, the record
should then be corrected to show that he transferred to the
Retired Reserve effective on 1 March 2009.

The Board further concludes that this Report of Proceedings
should be filed in Petitioner's naval record so that all future
reviewers will understand the reasons for the change in the
retirement date. .

RECOMMENDATION :

a. That Petitioner's naval record be corrected to show that he
was not retired on 1 January 2009 but remained on active duty
until he was released on or about 5 February 2009.
b. That Petitioner's naval record then be corrected to show that
he transferred to the Retired Reserve effective on 1 March 2009.

ec. 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. ASALMAN BRIAN J.% GEORGE
Recorder Acting Recorder

5. The foregoing report of the Board is submitted for your

review and action.
Rye d DS, SS

oe, W. DEAN PFEIFFER

Reviewed and approved:
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Qs xX. C&S,
fa~Le- OO

"Robert T. Cali 1
Assistant General Counsel
Manpower and Reserve Affairs)