DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

701 §. COURTHOUSE ROAD, SUITE 1004
ARLINGTON, VA 22204-2480

 

BIM
Docket: NR9239-13
11 April 2014

From: Chairman, Board. for Correction of Naval Records
TO: Secretary of the Navy

Subj: a

Ref:

@

Title 16 U.S.C. 1552
Encl: DD Form 149, w/attachments

Fax from Petitioner to BCNR, dtd 5 Dec 12

BCNR MEMO, 5400 EM, dtd 20 Jun 13,

Email from Petitioner to BCNR, dtd 11 Sep 13

OJAG MEMO 5420 Ser 13/1BC1009.13, dtd 23 Oct 13
BCNR ltr, datd 5 Nov 13

MEMO from Petitioner, a@td 1 Dec 13

Brief of ena in Prochazka v United
States, National Veteran's Legal Services Program
BCNR Decision, dtd 16 Mar 1i, in the Matter of

1. Pursuant to the provisions of reference (a) Subject,
hereinafter referred to as Petitioner, filed enclosure (1)
with this Board requesting, in effect, that the applicable
naval record be corrected to reflect a mandatory retirement
date (MRD) of 1 July 2008 or a date otherwise compatible
with 30 years of active service computed from his Active
‘Duty Service Date (ADSD) of 20 February 1978. Petitioner
asserts that his MRD was incorrectly adjusted based upon
inactive service while he was in the Law Student Program
(LSP). Petitioner requests an adjustment of active duty
service pay to reflect the corrected MRD and adjustments to
his retired pay.

 

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a. Petitioner alleges that since his accession into
the LSP and throughout his career, he was informed that his
time in the inactive reserve in the LSP did not count
toward retirement and served only to accelerate his
advancement to 0-3. Petitioner asserts he was surprised
Docket: NRS23¢9-13

when he received retirement orders in late 2006 with a
retirement date effective 1 July 2007 as he was under the
impression that he would serve until 1 July 2008.
Petitioner asserts he requested an extension on active duty
to meet a MRD based upon 30 years of active service from
his ADSD and that he received no response. Petitioner also
alleges that he submitted a request to exclude the LsP
inactive service from his MRD calculation and received no
response. -

b. Petitioner's original submissions argue that in
light of the holding in the ae -

    

pes See be believes he
was wrongfully retired in 2007. Petitioner provides copies
of his DD 214, Statement of Service, Law Student Program
Agreement, copy of a FeUuUS Court of
Federal Claims Case No. Me copy of his request for
extension on active duty (AD); copy of his retirement
orders; and copy of his reguest to exclude LSP inactive
service from his MRD computation.

  

 
  
  
 

 
 

c. On 5 December 2012, Petitioner faxed a copy of an
email from Navy JAG Senior Detailer and PERS 4416 to him
(dated 24 January 2004) to the Board for inclusion in the
record. Petitioner asserts the emaii is evidence that the
person responsibie for detailing, advice, community
management, and direct access to the Bureau of Personnel’s
(BUPER) computer, believed his mandatory loss date to be
2008 vice 2007.

a. The case was originally sent to the Navy Military
Personnel Command for an advisory opinion but was returned
without action. The case was then forwarded to the Office
of The Judge Advocate General (OJAG) for an advisory
opinion and was held in abeyance pending resolution of the
final litigation in the CEE ase that Petitioner
relies upon as a basis for relief. The case was further
processed once the Government decided not to appeal the

WEEE 2c ter.

e. On 22 October 2013, OJAG rendered an advisory
opinion in this matter. affording the Navy appropriate
deference in interpreting and administering the statutes
ana regulations at issue, OJAG concluded that the Navy's
interpretation of 10 USC § 6388 was permissible and that no
correction should be made. The opinion went on to state
Docket: NR9239-13

that if the Board concluded that the application of

regulations after the SA Case would create an
injustice to Petitioner, the Board could recommend
appropriate corrective action.

f. On 1 December. 2013, Petitioner responded to the
advisory opinion and reiterated his reliance on the court
decision in gM «petitioner disagreed with the
advisory opinion’s assertion that the Navy’s interpretation
was permissible and asserted that the court’s decision on
this matter, while not binding, is dispositive on his
request.

2. In the Following weeks, the Board, consisting of Mr.
Green, Mr. Ivins, and Mr. Rothlein, thoroughly reviewed
Petitioner's allegations of error and injustice and ina
closed session on 24 February 2014 determined , pursuant to >
its regulations, 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’s naval records reflect his
participation in the Navy LSP beginning on 24 February
1976.

c. Petitioner's naval records reflect an ADSD of 20
February 1978 and an Active Commissioned Service Date of 20
February 1978.

dad. On 22 January 2004, Petitioner inquired about his
MRD as the Judge Advocate General’s Corps (SJAGC) Personnel
Directory noted his loss date as 1 July 2007. On 24
January 2004, Petitioner receive@ an email from his JAGC
detailer at Navy Personnel Command, noting that his
statutory date for retirement was May 2008.
Docket: NR9239-13

e. On or about 18 October 2006, Petitioner received
retirement orders with an effective date of 30 June 2007.

f. Petitioner requested an extension on active duty
to meet a MRD based upon 30 years of active service from
his ADSD and received no response. Petitioner also
submitted a request to exclude the LSP inactive service
from his MRD calculation and received no response.

g. Petitioner was retired on 30 June 2007.
CONCLUSION :

Upon review and consideration of all the evidence of
record, and in light of the contents of enclosure (2), a
majority of the Board, consisting of Mr. Green, Mr, Ivins,
and Mr. Rothlein concludes that Petitioner's request should
be approved.

a. In reaching its conclusion, the majority found some
of the arguments set forth by the court in the Prochazka
case to be compelling. The Board conducted an analysis of
the facts in the QM case with those in the present
matter. The Board determined that the officers were
similarly situated and that Petitioner had a reasonable
belief in interpreting the provisions of 10 USC § 6388 to
allow him to exclude his time in the LSP from the
calculation for his mandatory retirement date.

b. The Board noted the confusion in the interpretation
of 10 USC § 6388 and the presumptions that such confusion
created for Petitioner regarding his ability to serve 30
years of active service prior to retirement. The Board
noted that such confusion and application of the Navy’s
position in this case would create an injustice to
Petitioner.

ce. The Board further relied upon evidence submitted by
Petitioner in the form of an email, from his JAGC detailer,
which noted that Petitioner had a statutory retirement date
of May 2008. The Board concluded that the detailer should
have known the proper method of calculation, or should have
inquired further based upon Petitioner's inquiry disputing
information indicating that his MRD was 30 June 2007. The
Board concluded that this email supported Petitioner’s
belief that his LSP time did not count towards his
Docket: NR¢G239-13

mandatory retirement date. However, the Board was not
convinced that the May 2008 date was the proper
calculation.

d. The Board noted that Petitioner had an ADSD of 20
Vebruary 1978. The Board concluded that under Petitioner’s
theory that he should have been able to complete 30 years
of active service, the Petitioner’s MRD should have been 28
February 2008.

e. As such, the Board concluded that as a Matter of
equity, the Petitioner's request to correct his record to
reflect that he completed 30 years of active service should
be granted.

RECOMMENDATION :

a. That Petitioner's naval record be.corrected to
reflect his retirement date effective 30 years from his
ADSD of 20 February 1978, which is 28 February 2008 vice 30
June 2007.

b. That Petitioner be entitled to all back pay and
allowances of active service pay, subject to civilian
earnings.

c. That Petitioner be entitled to an adjustment in his
retired pay.

ROBERT D. ZSALMAN BRONTE I. MONTGOME
Recorder Acting Recorder
Docket: NR9239-13

5: The foregoing action of the Board is submitted for

your review and action.

12 April 2014

Reviewed and approved.

ROBERT L. WoOoDs
Assistant General Counsel

ROBERT D. ZSALMAN
Acting Executive Director

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