DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
WJH
Docket: 7120-09
8 June 2010
This is in reference to your application for correction of
naval record pursuant to the provisions of 10 USC 1552,
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 4 June 2010.
Records reveal that you were discharged from the Naval
Reserve in 1955 in order to accept an appointment at the
United States Naval Academy. You seek to remove the
discharge and to add the time you spent at the United
States Naval Academy as creditable time for basic pay
purposes. The Board noted that the discharge you seek to
remove was issued over 50 years ago. Under the rules
governing this Board, an application for a correction of a
naval record must be made within three years after the
discovery of the alleged error. Failure to file within the
prescribed three years may be excused in cases where the
Board finds that it is in the interests of justice to do
so. You have asserted that you were unaware, until
recently, that some of your classmates previously sought
similar relief (many years ago). The Board carefully
considered this claim. However, it is apparent that you
were aware that you had been discharged from your reserve
status as early as 1955. You neglected to assert any claim
pertaining to your discharge for an inordinately long
period of time. Under these circumstances, the Board found
that it is not in the interests of justice to excuse the
three year time limit in your particular case.
rocket: 7120-09
Even though the Board determined that it was not in the
interest of justice to excuse the three-year time
limitation, the panel nevertheless considered, the
substantive allegations contained in your application.
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. In addition, the Board
considered the advisory opinion furnished by the Navy
Personnel Command letter 1811 PERS 8333 of 28 Jan 2010, a
copy of which was previously provided. The Board also
considered the comments you made, through counsel, to the
advisory opinion.
after careful and conscientious consideration of the entire
record, the Board found there was no error or injustice in
your discharge from the Naval Reserve in 1955 when you
entered the Naval Academy. The Board noted that Department
of Defense Directive Number 1300.4 of 3 May 1954, which has
been previously provided to you, established a policy that
reservists who were entering a service academy (regular
component) were to be discharged from the reserve component
in order “to prevent such individuals from having dual
military status.” In the Board’s view, that policy was
reasonable and it was properly adhered to and executed in
your case. The purpose of the Naval Reserve is to
establish an available pool of trained reserve personnel
that may be called upon to meet emergencies. Naval Reserve
members typically train in organized Wits to Eulrait
certain specified missions. The Naval Academy is dedicated
to developing future uniformed military leaders of high
moral and ethical character. Midshipmen serve in the
regular component and do not perform reserve drills,
training or service. It was reasonable, therefore, for you
to be discharged from the reserve component when you
entered the Naval Academy. While at the Naval Academy, you
were simply not training as a member of the Naval Reserve
and not available to be called upon to meet emergencies as
a member of the Naval Reserve.
You have asserted that other members of your graduating
class who had also received discharges upon entering the
Naval Academy, had been afforded dual status. As evidence,
©
ocket: 7120-09
you point generally to cases decided by this Board prior to
1990. The Board gave due consideration to your argument.
However, the Board is not bound by the erroneous decisions
of prior panels. In the Board's view, any errors made by
prior panels in decisions issued many years ago should not
be perpetuated in your case. The policy that reservists
who were entering a service academy were to be discharged
from the reserve component in order “to prevent such
individuals from having dual military status” was
reasonable and it was properly implemented in your case.
Therefore, there is no error or injustice in your 1955
discharge from the Naval Reserve. 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
also 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 In DStice:.
Sincerely,
Lo
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