DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 07081-09
2 June 2007
From: Chairman, Board for Correction of Naval Records
Te": Secretary of the Navy
a +: oe oii i
Sub): =i boa cael
REVIEW OF NAVAL RECORD
Ree : (a) 10 WsS.€. L552
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, in effect and as amended, that the applicable naval record
be corrected to show that he transferred to the Fleet Reserve pursuant
to the Temporary Early Retirement Authority (TERA) effective 1
February 2000, vice being discharged with entitlement to disability
severance pay on 25 January 2000. He also requests that if his primary
request is granted, he not be required to repay the disability
severance pay he received on or about 25 January 2000.
2. The Board, consisting of Messrs ie liso ‘eet
reviewed Petitioner’s allegations of error and injustice on 20 May
2010, and pursuant toits 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 was released from active duty on 31 March 1995 and
transferred to the Temporary Disability Retired List (TDRL), with
a disability rating of 100% for colon cancer, having completed in
excess of 15 years of active duty service. Prior to his transfer to
the TDRL he was advised by the President, Physical Evaluation Board,
of his right to apply for retirement under TERA in lieu of transfer
to the TDRL, and that should he be transferred to the TDRL, he might
be entitled to elect retirement under TERA or separation with
entitlement to disability severance pay should his condition be rated
below 30% disabling. He was discharged with entitlement to disability
severance pay effective 25 January 2000, upon the reduction of his
disability rating to 10%.
c. DOD Instruction 1332, section E3.P7.2.1.1 provides that members
with a disposition of separation for physical disability who had 15
but less than 20 years of service computed under Section 1208 of title
10, U.S. Code and whose unfitting conditions were not due to the
member's intentional misconduct or willful neglect or incurred during
a period of unauthorized absence would be afforded the opportunity
to elect separation for physical disability or to apply for, and if
approved, non-disability retirement under the Temporary Early
Retirement Authority (TERA) under 10 U.S.C. 3911 (reference (b) )
during the period of temporary special qualification authority
beginning on October 23, 1993, and ending on October 1, 1999. The
same opportunity shall be afforded to members recommended for
placement on or separation from the TDRL. Authority to retire service
members under TERA was ultimately extended to 2001.
CONCLUSION:
Upon review and consideration of all the evidence of record, the Board
concludes that the Board concludes that although Petitioner's
discharge was not erroneous, it was unjust, and that it would be at
the interest of justice to correct his record to show that he was
transferred to the Fleet Reserve vice being discharged with
entitlement to disability severance pay. The Board was not persuaded
that it would be in the interest of justice to correct his record
in such a manner that he will not be required to repay the disability
severance pay he received on or about 25 January 2000.
RECOMMENDATION :
a. That Petitioner's naval record be corrected to show that he
was not discharged by reason of physical disability on 25 January
2000.
b. That his record be further corrected to show that he was
transferred to the Fleet Reserve pursuant to the Temporary Early
Retirement Authority effective 1 February 2000.
c. That no further relief be granted.
d. That a copy of 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 (LAP . NICIOS
Recorder “Boting 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.
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