DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TIR
Docket No: 7087-11
27 July 2011 -
From: Chaixman, Board for Correction of Naval Records
To: Secretary of the Navy
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149 with attachments
(2} Case summary
(3) Subject's naval record
1, Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the Navy, filed enclosure (1) with this
Board requesting, in effect, that his record be corrected to show
that he was transferred to the Navy Fleet Reserve vice discharged
on 9 December 2010.
2. The Board, consisting of Mr. Garst, Mr. Sproul, and Ms.
Zivnuska, reviewed Petitioner's allegations of error and
injustice on 26 July 2011 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, reguiations 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. Enclosure (1) was filed in a timely manner.
c. Petitioner enlisted in the Navy, began a period of active
duty on 16 July 1991, and served without disciplinary incident.
However, on 3 October 2008, Petitioner voluntarily submitted a
written statement regarding his long term inappropriate
relationship with his minor step-daughter during the period from
1999 to 2001. As a result of this conduct, he was denied
retention and reenlistment. Subsequently, the Chief of Naval
Personnel (CNP) processed him for an administrative separation by
reason of nonretention on active duty. On 3 December 2010, while
serving in paygrade E-8, he was honorably discharged and assigned
an RE-4 reenlistment code.
d. The Petitioner filed a Complaint of Wrongs regarding his
denial of retention on active duty and being discharged from the
Navy. As such he requested to be granted conditional
reenlistment to serve until he was retirement eligible. On 17
March 2011, the Vice Chief of Naval Operations (VCNO) reviewed
the Complaint of Wrongs and determined the CNP properly denied
his request for reenlistment based on his self-admittance of
inappropriate conduct with a minor. Nonetheless, the VCNO
concluded that he was wrongfully discharged after serving for
nearly 20 years on active duty. In this regard, VCNO recommended
that relief in the form of “constructive service credit” be
granted to allow him to reach retirement eligibility.
e. On 7 April 2011 the Deputy Assistant Judge Advocate
General (Administrative Law) (JAG/AL) concurred with the
recommendation of the VCNO. However, the JAG/AL further
recommended that the determination for corrective action be made
by the Assistant Secretary of the Navy (Manpower and Reserve
Affairs) (ASN(M&RA)), if this Board also concurred with the VCNO
and JAG/AL. In other words, JAG/AL specifically recommended that
- ASN(M&RA), acting for the Secretary of the Navy (SECNAV), make
the determination to correct the record, vice this Board, if
warranted.
fF. On 15 July 2011, after review of the Complaint of Wrongs
by ASN(M&RA), the Board was directed to review the Complaint of
Wrongs and provide a recommendation to correct the record, if
warranted, to reflect six months of constructive service credit,
which would make Petitioner retirement eligible.
g. 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, the
Board concludes that Petitioner's request warrants relief. The
Board finds that he was wrongfully. discharged after serving 19
years, four months, and 19 days on active duty. Therefore, the
Board, in concurrence with the VCNO and JAG/AL, concludes that
his record should be corrected to reflect six months of
constructive service credit. In this regard, the record should
be corrected to show that he was retired from the Navy and
transferred to the Navy Fleet Reserve on 1 July 2011.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that
he was retired and transferred to the Navy Fleet Reserve on 1
July 2011, while serving in paygrade E-8, vice discharged on 19
December 2010.
b. That this Report of Proceedings be filed in his naval
record.
c. That any material or entries inconsistent with or relating
to the Board’s recommendation be corrected, removed, or
completely expunged from Petitioner’s record and that no such
entries or material be added in the record in the future.
d. T hat any material directed to be removed from
Petitioner's naval record be returned to the Board, together with
a copy of this Report of Proceedings, for retention ina
confidential file maintained for such purposes, with no cross
reference being made a part of 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 BRIAN J. “GEORGE
Recorder Acting Recorder.
5. The foregoing action of the Board is submitted for your
Reviewed and disapproved:
NAVY | BCNR | CY2006 | 09850-06
References (b) through (d), in effect at the time of Petitioner’s transfer, reference the plenary authority of the Secretary of the Navy to transfer a member to the Fleet Reserve in a reduced paygrade. Regulations in effect at the time of Petitioner’s transfer reference the plenary authority of SECNAV to transfer a member to the Fleet Reserve in a reduced paygrade. On 7 January 2004, Petitioner, a chief petty officer (E-7), was authorized by ASN(M&RA) to transfer to the Fleet Reserve,...
NAVY | BCNR | CY2001 | 06829-00
Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, applied to this Board requesting that his naval record be corrected by setting aside the general discharge of 9 September 1999 and showing that he continued to serve on active duty until the date he was eligible to transfer to the Fleet Reserve and, on that date, was so transferred with an honorable characterization of service. pay.13 1160.5C states that Chief of Naval 5 1174(b) states that a...
NAVY | BCNR | CY2002 | 07317-01
ItGKBtt is assigned when Separation code discharged by reason of misconduct due an individual is to civil conviction.4 q- On 20 June 2001 Petitioner's counsel faxed a supplemental letter of deficiency to NAVPERSCOM responding, in part, as follows to the 4 May 2001 letter from COMPHIBGRU TWO: Pursuant to MILPERSMAN 1910-710 if the (ADB) finds that the preponderance of the evidence does not support one or more of the reasons for separation alleged and recommends retention then the Separation...
NAVY | BCNR | CY2002 | 04617-01
About 16 h. Petitioner's Fleet Reserve Transfer Authorization On that date, it appears that in accordance with 10 stated that he would complete 30 years of service on 1996. 6331, he was transferred to the Retired List upon completion of 30 years of service on active duty and in the Fleet Reserve. It is very clear from,subparagraph Accordingly, since SECNAVINST 1910.4A did not Since Petitioner's evidenced by the NJP of 11 January 1989, the Board concludes there is no justification to grant...
NAVY | BCNR | CY2002 | 08202-01
He was not t. In a brief attached to Petitioner's application, counsel makes the following contentions: 1910.4B; and the effect of an lectured, off the record, to change no- The provisions of the MILPERSMAN which state that a contest plea is tantamount to a conviction, and that any conviction is binding on an ADB, are without force and effect since those provisions are not set forth in Secretary of the Navy Instruction (SECNAVINST) since that directive empowers the ADB to determine...
NAVY | BCNR | CY2001 | 06136-01
Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, applied to this Board requesting that his naval record be corrected by setting aside the dishonorable discharge of 19 January 1999. That Petitioner's naval record be corrected by removing all references to the GCM conviction of 23 August 1996. That the record be further corrected by removing all references to the dishonorable discharge of 19 January 1999.
NAVY | BCNR | CY2004 | 01176-04
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.After careful and conscientious consideration of the entire record, the Board found that the evidence submitted wa insufficient to ~tL DiIs]z the ~ist see f pm h 71 - m~teyi<i error o~ i~ Ustic&.The Board found that you enlisted in the Navy on 29 April 1980 at age 19. On 3 February 1982 you...
NAVY | BCNR | CY2005 | 09474-05
Subj: REVIEW OF NAVAL OF RECORD Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, filed enclosure (1) with this Board requesting a change in his reenlistment code. He now requests a change in his reenlistment code so he can apply to the active guard and reserve.
NAVY | BCNR | CY1998 | NC9808231
8231-98 26 April 1999 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) 10 U.S.C.1552 Encl: (1) DD Form 149 w/attachments (2) Case Summary (3) Subject's naval record 1. The CO concurred with the ADB's recommendation, stating that discharge should be suspended for 18 months to allow Petitioner's transfer to the Fleet Reserve. At the time, he had completed more than 19 years and four months of active service.
NAVY | BCNR | CY2001 | 07091-99
In his memorandum of that date, the SJA set forth Petitioner's record of service and noted that the CG could either approve the recommendation of the ADB and retain Petitioner or recommend to the Secretary of the Navy (SECNAV) that Petitioner be discharged notwithstanding that recommendation. SECNAVINST administrative separations in the Navy and Marine Corps. Although Petitioner received NJP for violating SECNAVINST 5300.26B between 1 December 1997 and 31 January 1998, he could not, as a...