DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
HD:hda
Docket No. 12409-10
1 April 2011
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.
You requested that your lieutenant date of rank be changed from 1
September 2006 to 1 May 2003; that your lineal precedence be adjusted
accordingly; and that you be afforded consideration for promotion
to lieutenant commander accordingly, to include consideration by a
special selection board. You also requested back pay from 12 to 30
September 2006. This relief was denied on 7 August 2008 in your
previous case, docket number 2806-08. In accordance with the order
of the United States District Court for the District of Columbia filed
on 4 November 2010, your case was reconsidered.
A three-member panel of the Board for Correction of Naval Records,
sitting in executive session, reconsidered your case on 31 March
2011. 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 letter, together with all
material submitted in support thereof, the Board's file on your prior
case, your naval record and applicable statutes, regulations and
policies. In addition, the Board considered the advisory opinion
furnished by the Navy Personnel Command dated 26 January 2011, the
Deputy Assistant Attorney General memorandum opinion dated 28 July
2005, and the Secretary of Defense (SECDEF) memorandum dated 30 June
2006, copies of which are attached. The Board also considered your
counsel’s letters dated 15 November 2010 and 17 March 2011, each with
attachments.
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. In
this connection, the Board substantially concurred with the comments
contained in the advisory opinion, except to note that entry grade
credit (EGC)for your Regular appointment in the Judge Advocate
General Corps (JAGC) was computed in accordance with title 10 of the
United States Code, section 533, not section 12207, but Department
of Defense Directive (DODDIR) 1312.3, which Chief of Naval Operations
Instruction (OPNAVINST) 1120.11 implements, implements both
sections 533 (in paragraph 1.2) and 12207 (in paragraph 1.3); and
further to note that title 10 of the United States Code, section
533(£) applies to officers who are merely transitioning from Reserve
to Regular status, but the EGC provisions of section 533 apply to
officers, like yourself, who are entering a new professional field.
The Board further observed that its original denial letter dated 8
August 2008 should have stated that paragraph 2.2 of DODDIR 13,22).:3-
which states the directive does not apply to appointments under
section 533(f), is not applicable, as your appointment to the JAGC
was not under section 533(f), but that the EGC previsions of the
directive are applicable.
You now contend that your student appointment to ensign in the Navy
Reserve on 25 August 2006 was both void and unnecessary, impliedly
requesting correction of your record to show you were never given
such an appointment. The Board found SECDEF did not have to sign
that appointment, notwithstanding section 3 of Executive Order 13358
dated 28 September 2004, Tab B to your counsel’s letter of 17 March
2011, noting that the memorandum opinion from the Deputy Assistant
Attorney General states “it is well established that the documents
evidencing an appointment by the President or the head of a department
need not be signed by that person.” The Board particularly noted
that the SECDEF memorandum shows he did approve the appointment in
question, so it was issued in compliance with the Executive Order.
Concerning your contention that the student appointment was
unnecessary, the Board found it was appropriate, if not strictly
necessary, for your status to be changed to reflect that you were
an officer completing the requirements for appointment in the JAGC.
In this regard, as the Board stated in its denial letter of 8 August
2008, paragraph 8.b.(2) of OPNAVINST 1120.11 indicates a
prerequisite for a JAGC commission is “official notification of
passing the bar examination.”
The Board found that title 10 of the United States Code, section
533(a) (2) authorizes SECDEF to prescribe regulations limiting credit
for prior active commissioned service, or to deny any such credit
2
in the case of a person credited with constructive service. The
Board found that the applicability of the authority to limit credit
for prior active commissioned service is not restricted to persons
credited with constructive service,
In view of the above, the Board again voted todeny relief. 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,
Wo Dea
W. DEAN PFE
Executive Divettior
Enclosure
Copy to:
ae
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