DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
	WASHINGTON DC 20370-5100	

		LCC:lc
		Docket No: 254-04	
		11 May 2004

		

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.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 11 May 2004. 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 NPC letter, 5420 POOJ2/069, undated, a copy of which is attached.

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. 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 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,

W. DEAN PFEIFFER
Executive Director

Enclosure

DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055.0000

5420
POOJ2/069

From:	Office of Legal Counsel (Pers-00J2)
To:	Executive Director, Board for Correction of Naval Records
Via:	Assistant for BCNR Matters (Pers-OOZCB)

Subj:	REQUEST FOR COMMENTS AND RECOMMENDATION IN CASE OF

End:	(1) BCNR File

1.	This responds to your request for comments and a recommendation on subject BCNR petition (enclosure (1)) In essence, petitioner requests his record be corrected to show a retirement date of 1 Jan 2005 vice 1 Jul 2002. For reasons previously addressed by Pers-OOL1’s 27 Aug 2002 memorandum (enclosure (1), recommend denial of petitioner’s request.

2.	Background. Petitioner challenges the computation of his mandatory retirement date of 1 Jul 2002, which required his retirement approximately 2 1/2 years before completion of 30 years of active service. He, and other officers similarly affected, have questioned the validity of and rationale for including inactive commissioned service in the computation of total commissioned service. The effect of including such inactive service is that the amount of creditable service for the purpose of determining retired pay multiplier’ will be less than the amount of service that will compel involuntary retirement for years of service.2 Thus, petitioner and other similarly situated officers do not earn the maximum 75% retired pay multiplier.

3.	Discussion. The discussion below addresses pre-DOPMA3 and DOPMA provisions, DOPMA transition provisions, and DOPMA implementation. Fundamentally, the decision to include inactive commissioned service was made as a matter of policy.

Attorney-Client Communication and/or Work Product

See 10 U.S.C. ~ 1409.

2See 1OU.S.C. §~ 633, 634.

Defense Officer Personnel Management Act, Pub. L. No. 96-5 13, § 624, 94 Stat. 2951 (1980).

Subj:	REQUEST FOR COMMENTS AND RECOMMENDATION IN CASE OF

a.	Applicable Law

(1)	Pre-DOPMA law. Prior to DOPMA, chapter 573 of title 10, U.S. Code, addressed involuntary retirement. Retirement for length of service was based on “total commissioned service,” rather than the DOPI4A standard of “active commissioned service.” For example, Regular Navy staff corps captains were to be involuntarily “retired on June 30 of the fiscal year [in which the officer completes] 31 years of total commissioned service as computed under [10 U.S.C. § 6388].”~ With the exception of those JAGC5 officers who were designated as Special Duty Officer (Law) at the time the JAGC was authc_rized,6 the total commissioned service concept was ineffective for the purpose of involuntarily retiring JAGC officers. For JAGC officers, total commissioned service was to be computed under 10 U.S.C. § 6388.~ Under 10 U.S.C. § 6388(b), total commissioned service was computed from 30 June of the fiscal year in which the officer: (1) accepted an original regular appointment; (2) in the JAGC; (3) as an ensign or lieutenant (junior grade); and, (4) served continuously on active duty thereafter. If all of these criteria were not met, total commissioned service was to be determined under 10 U.S.C. § 6388(c). This subsection provided that such an officer would have the same total commissioned service as the JAGC officer who has the maximum total commissioned service computed under 10 U.S.C. § 6388(b) and has not lost precedence or been junior to such officer for the purpose of promotion. In other words, if all of the
10 U.S.C. § 6388(b) requirements did not apply to an officer, that officer would be “matched” with an officer to whom all of the 10 U.S.C. § 6388(b) requirements did apply. Because of JAGC accession policies, officers were not originally appointed in the Regular Navy until they were above the grade of lieutenant

Attorney-Client Communication and/or Work Product

10 U.S.C. § 6377 (repealed 1980).

~ Judge Advocate General Corps [hereinafter JAGCJ.

6See Act of Dec. 8, 1967, Pub. L. No. 90-179, § 10, 81 Stat. 549 (1967), providing that redesignation of an officer “shall not operate to change the computation of his service for any purpose.” Id.

~ See 10 U.S.C. § 6388 (repealed 1980).

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Subj:	REQUEST FOR COMMENTS AND RECOMMENDATION IN CASE OF

(junior grade) .~ Thus, there were no officers in the JAGC who met the criteria of 10 U.S.C. § 6388(b) and therefore no officers who could be “matched” for the purpose of
10 U.S.C. § 6388(c). Hence, JAGC officers could not be involuntarily retired for years of service under pre-DOPMA law and, unless selectively retired, could have remained on active duty until they attained 62 years of age.

(2)	DOPMA provisions. The anomaly described above was corrected through DOPMA. Under DOPMA, involuntary retirement for years of service is determined based on active commissioned service, “Active commissioned service” is service on active duty as a commissioned officer. All regular officers are treated in the same manner and have active commissioned service based on actual active duty time. Thus, for officers who were appointed in the Regular Navy after 15 September 1981, the effective date of DOPMA, computation of active commissioned service is straightforward.

(3)	DOPMA transition. Because the enactment of DOPMA resulted in several significant changes, transition provisions were required. In general, previous rights were preserved and authority was provided to harmonize prior provisions with DOPMA. With respect to computing years of service for involuntary retirement or discharge, section 624 of DOPMA provides guidance. Specifically, section 624(a) states that years of service for involuntary retirement under DOPI4A is determined by adding the amount of service creditable for involuntary retirement prior to the effective date of DOPMA to subsequent active commissioned service. In the case of an officer for whom there is no means of computing creditable service prior to the effective date of DOPMA, section 624(b) provides that the amount of creditable

Attorney-Client Communication and/or Work Product

8 See Code 13 memorandum for the Judge Advocate General, JAG: 13 1.6:GNG:slb7 of 22 Nov 82.

9See JAG memorandum for Chief of Naval Personnel, JAG: 131 .4:RTH:cck Ser 6769
of 17 Aug 72. See also JAG memorandum for the Chief of Naval Personnel, JAG: 13 1.3:PLJ:cck Ser 697 of 21 Jan 75. Though petitioner claims there is no evidence of a problem or difficulty in computing total commissioned service pre-DOPMA for staff corps officers, this problem was discussed in various JAG (Code 13) memoranda preceding the implementation of DOPMA.

105ee 10 U.S.C. §~ 633-636.

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Subj:		REQUEST FOR COMMENTS AND RECOMMENDATION IN CASE OF

service shall be determined under regulations prescribed by the Secretary of Defense, except that such an officer may not be credited with an amount of service less than the amount of his active commissioned service.”

(4)	Regulatory implementation. To compute creditable service for the purpose of involuntary retirement,” SECNAVINST 1821.1 was drafted. The proposed instruction adopted the “matching” concept, but used a line officer as the matching officer for each JAGC officer. Under this method of computing total commissioned service, each JAGC officer was assigned a service date that represented the fiscal year of original regular appointment of a due course line officer who was not then junior to the JAGC officer. In October of 1981, the Judge Advocate General endorsed this method of computing total commissioned service. In November 1981, the Office of the Chief of Naval Operations modified the draft instruction by subtracting constructive service credit and inactive commissioned service from the computation of total commissioned service. On 18 November 1981, the Judge Advocate General responded by objecting to the subtraction of inactive commissioned service. The two relevant paragraphs of the memorandum are quoted in their entirety below to illustrate that the inclusion of inactive service was a deliberate policy decision:

3.	Because subject instruction is designed for the purpose of computing years of service for involuntary retirement or discharge for certain regular staff corps officers, it is considered in the best management interest of the staff corps of the Navy to compute total commissioned service in a manner which allows each staff corps to select those officers who should be retired or continued on active duty based upon the particular needs of the staff corps at the time. Subtracting service as a commissioned officer in an active status, but not on active duty, in a 19XX program will have the effect of stifling promotion opportunity for highly qualified junior officers and

Attorney-Client Communication and/or Work Product

~ While DOPMA transition provisions use the phrase “creditable service,” the pre-DOPMA nomenclature of “total commissioned service” was adopted in the implementing regulations.

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Subj:	REQUEST FOR COMMENTS AND RECOMMENDATION IN CASE OF

will restrict management from selecting out, by a noncontinuation process, officers who may be marginal performers.

4.	The majority of accessions for the Judge Advocate General’s Corps are commissioned through the JAG Student 1955 program. While participating in this program, these officers receive full credit for their Reserve commissioned service for longevity pay purposes. This fact in itself would tend to justify inclusion of such Reserve commissioned service in computing total commissioned service under subject instruction. Additionally, given the control grade ceilings in effect under [DOPMA], it will become increasingly important in the upcoming years for each staff corps to have maximum management flexibility relative to the continuation of senior grade officers. Reducing that control by automatically allowing officers accessed as 19XXs to avoid facing continuation-board action, for up to three years, in the case of the Judge Advocate General’s Corps, seriously reduces the benefits of an effective management tool. Accordingly, it is the recommendation of the Judge Advocate General that the language in the [draft instruction] concerning exclusion from an officer’s total commissioned service of periods of service as a commissioned officer in an active status, but not on active duty, while in a
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student program be deleted.

(a)	Including inactive service in the computation of total commissioned service was a policy decision recommended by the Judge Advocate General for reasons of community management. This decision was not compelled by law but was legally

Attorney-Client Communication and/or Work Product

12 JAG memorandum for Director, Military Personnel Policy Division (OP-13), JAG: 13 1.6:WDB:slb Ser: 13/5585 of 18 Nov 81 (signed by RADM GC, USN). Based on this recommendation, the final version of SECNAVThJST 1821.1 included inactive service in the computation of total commissioned service.

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Subj:		REQUEST FOR COMMENTS AND RECOMMENDATION IN CASE OF

permissible.’3 Inclusion of inactive service was a possible consequence in the pre-DOPMA computation of total commissioned service where the “matching” system was used.’4 With the transition to DOPMA, inactive service would automatically carry over under the provisions of section 624(a) of DOPMA, without the necessity of implementing regulations. ‘~ Because the inclusion of inactive service in total commissioned service was a possible statutory consequence, it is reasonable to conclude that such a consequence could be prescribed by regulations under the authority of section 624(b) of DOPMA.

(b)	Following the approval of SECNAVINST 1821.1, MILPERSCOMNOTE 1821 was issued. This notice restated the method of computing total commissioned service and assigned service dates to certain regular staff corps officers.

4.	Conclusion: Petitioner’s request should be denied as his retirement date was computed in accordance with law and policy.

5.	Point of contact is Steven P. Hester at  DSN
882-3163.

Steven P. Hester Assistant Legal Counsel

13 Though petitifioner challenges the inclusion of inactive service in the computation of his total commissioned service as contrary to Congressional intent, this means of computation of total commissioned service represented a policy decision necessary to fill the gaps created by the DOPMA transition provisions. “The power of an administrative agency to administer a congressionally created program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly by Congress.” Morton v. Ruis, 415 U.S. 199, 231 (1974). If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

14 In other words, a possible statutory consequence for Navy line and Marine Corps officers was to have inactive service included in total commissioned service computed under 10 U.S.C. § 6387. For officers of staff corps other than JAGC, this consequence could have resulted from 10 U.S.C. § 6388.

15 See HQMC Information Paper JAR1/16939 of 22 Jan 98 (describing the inclusion of inactive service in the computation of total commissioned service for certain Marine Corps judge advocates).

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