DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 784-20  
Ref: Signature Date  

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

Ref:    (a) Title 10 U.S.C. § 1552 

Encl:   (1) DD Form 149 w/attachments 

1.  Pursuant to the reference, Subject, a former enlisted member of the Navy, hereinafter referred to as Petitioner, filed the enclosure with the Board for Correction of Naval Records (Board) requesting, in effect, that the applicable naval record be corrected to place him on the regular retirement list vice the Temporary Disability Retirement List (TDRL). 

2.  The Board, consisting of                                                                 , reviewed Petitioner’s allegations of error and injustice on 12 March 2020 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, relevant portions of 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 entered active duty with the Navy on 5 May 1993 and served until his transfer to the TDRL effective 28 January 2015.  He was found unfit for continued naval service by the Physical Evaluation Board (PEB) for Degenerative Cervical Spine, Migraine Headaches, and Complex Partial Seizure Disorder. At the time of his transfer to the TDRL, he was eligible for placement on the regular retirement list with 21 years, 8 months, and 24 days of active duty service.  Petitioner asserts he was never informed that he had the right to waive his disability case in order to be retire with years of service. 

CONCLUSION 

Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief.  Specifically, the Board determined that Petitioner should be placed on the regular retirement list effective the date of his placement on the TDRL.  Under SECNAVINST 1850.4E, Petitioner was eligible to request a non-disability retirement, based on his years of qualifying active duty service, and waive his disability retirement.  While the Board did not find evidence to support his assertion he was unaware of his right to waive his disability retirement, they concluded that the interests of justice merit granting Petitioner’s request since he was eligible for a non-disability retirement at the time of his placement on the TDRL. 

RECOMMENDATION 

In view of the above, the Board directs the following corrective action. 

That Petitioner’s naval record be corrected by placing Petitioner on the regular retirement list, based on years of active duty service, effective the date he was placed on the TDRL. 

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. 

5.  Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy. 


4/13/2020