DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON BC 20370-5100
TJR
Docket No: 1401-10
29 April 2010.
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
;:; REVIEW NAVAL RECORD OF =iimiiGianliiig
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149 with attachments
(2) Case summary with an advisory opinion
(3) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the Marine Corps Reserve, filed
enclosure (1) with this Board requesting that his record be
corrected to show that he was transferred to the Marine Corps
Retired Reserve vice discharged on 28 February 1994.
2. The Board, consisting of Ms. (Re PMc. e.and Mr.
WU veviewed Petitioner's allegations of error and injustice
on 27 April 2010 and, pursuant to its regulations, determined
that the partial 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 enclosure (1) was not filed in a timely manner,
it is in the interest of justice to waive the statue of
limitations and review the application on its merits.
c. Petitioner enlisted in the Marine Corps, was honorably
released from active duty, and transferred to the Marine Corps
Reserve. On 8 February 1999 he was honorably discharged.
d. Enclosed is a copy of Petitioner's career retirement
credit record which reflects 19 years, 8 months, and 25 days
of qualifying service. In this regard, an advisory opinion from
the Headquarters Marine Corps Separation and Retirement Branch
(MMSR-5) dated 19 April 2010 states, in part, that he is not
eligible for reserve retirement, and that there was no
documentation to reflect that he had requested additional service
in order to reach the required 20 years of qualifying service.
The advisory opinion further recommends that his request for
reserve retirement be denied.
e. Although the advisory opinion in this case recommends
relief be denied, the Board is aware that the Commandant of the
Marine Corps has routinely moved points, as a corrective action,
to satisfy reserve retirement requirements even though an
individual was not fully qualified for reserve retirement. In
this regard, a review of Petitioner’s career retirement credit
record reflects that if points are moved from a satisfactory year
to an unsatisfactory year, he would be eligible for reserve
retirement, and as such would have enough time to receive retired
pay at age 60.
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 following the date of separation.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
despite the advisory opinion from MMSR-5, the Board concludes
that Petitioner's request warrants relief. In this regard, the
Board substantially concurs with the comments contained ina
previously received advisory opinion that recommended moving
points from a satisfactory year to an unsatisfactory year. The
Board concludes that since Petitioner was in good standing in the
Marine Corps Reserve and will be credited with 20 years of
qualifying service, after moving points, his record should be
corrected to show that, while serving in the rank of gunnery
sergeant (GySgt/paygrade E-7), he was transferred to the Marine
Corps Retired Reserve on 1 March 1994.
RECOMMENDATION :
a. That Petitioner’s naval record be corrected to show that
sufficient retirement points from the excess over 50 points ina
prior anniversary year were transferred into the anniversary year
ending on 21 April 1982, thus making that a qualifying year for
reserve retirement.
b. That Petitioner's naval record be corrected to show that
he was transferred to the Marine Corps Retired Reserve effective
1 March 1994, in the rank of gunnery sergeant (GySgt/paygrade
E-7), vice being discharged on 28 February 1994.
c. That this Report of Proceedings be filed in his 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. Z2SALMAN BRIAN J. GEORGE
Recorder Acting Recorder
5. The foregoing action of the Board is submitted for your
review and action.
W. DEAN PFET
Reviewe nd approved:
Assistant General Counsel
(Manpower and Reserve Affairs)
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