DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 6779-15 8 Feb 16 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO Ref: (a) (b) Title 10 Title io u.s.c. u.s.c. 1552 1176 Encl: (1) DD Form 149 w/attachments (2) Remand Order v. The United $tates, 2015 U.S. Claims 917 (Fed. Cl _ July 24, 2015) (3) DAJAG memo .5420 Ser 13/1BC1253 .15 undated 1. Pursuant to the provisions of reference (a) Subject, hereinafter referred to as Petitioner, filed enclosure {l) with t his Board requesting, in effect, that the applicable ·naval record be corrected by removing all documentation evidencing his discharge from the. Navy which occurred on 15 October 2008. Additionally, Pet itioner requests full reinstatement to the rank and position he held prior to his separati on and that he be afforded all available opportunity for advancement and promotion that he would have been afforded had he not been separated. In the alternative, Petitioner requests that he be transferred to the Fleet Reserve. Finally, Petitioner requests the back payment of all regular and special pay, allowances, allotments, compensation, emoluments., or other pecuniary benefits due, along with constructive-service credit and accrued leave. The Board denied Petitioner's·original request (docket number 6680-11) on 6 May 2013 and the Petitioner subsequently filed his cas~ in the United States Court of Federal Claims. The Court held that the Petitioner's separation was improper and remanded the case to the Board for Correction of Naval Records (BCNR) on 24 July 2015 for further review. Pursuant to the court's order, enclosure (2), the Board considered the following issues: a.· In the absence of the improper discharge, was Petitioner entitled to continued active duty pay status pursuant to reference (b), section 1176(a) or any applicable Navy regulation? b. I f Petitioner was entitled to ~ontinued active duty status pursuant to section 1176(a) of reference (b), was he also entitled to request a ~ransfer to the Fleet Reserve? 23 November 2015 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of recorq. 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. Enclosure (l) was filed in a timely manner. c. The Board denied Petitioner's request on 6 May 2013 and the Petitioner subsequently filed his case in the Federal Court of Claims. d. The Court held that the Petitioner's separation was improper and remanded the case to the Board for Correction of Naval Records (BCNR) on 24 July 2015. See enclosure (2). e. Petitioner enlisted in the Navy on 3 March 1992. He reenlisted several times between 1992 and 2005. On 28 December 2005, Petitioner reenlisted again. On 2 January 2008, Petitioner extended that enlistment through 27 October 2010. See enclosure (1), Petitioner's Tab M. f. Per enclosure (3), Deputy Assistant Judge Advocate General (Administrative Law) (DAJAG) provided an advisory opinion concluding that the evidence proffered by Petitioner is sufficient to support the requested record change. The advisory opinion provides the following evidence to support its position: In the absence of the improper discharge and, assuming the enlistment extension was valid, Petitioner , was entitled to continued active duty pay status through his End of Active Obligated Service (EAOS) date pursuant to the terms of his last enlistment contract including his enlistment extension. Petitioner was entitled to request a transfer to the Fleet Reserve on or after 3 March 2010 pursuant to section 1176(a) of reference (b) unless his enlistment extension was invalid or he was sooner discharged prior to completing 20 years of active service under any other provision of law. DAJAG noted that Section ll76(a) of reference (b) states that a regular enlisted member "whose term of enlistment expires and who is denied reenlistment, and who on the date on which the member is to be discharged is within two years of ...qualifying for transfer to the Fleet Reserve...under section 6330 of this title, shall be retained on active duty until the member is qualified for...transfer to the Fleet Reserve... , unless the member is sooner...discharged under any other provision of law." This period between eighteen and twenty years of active duty enlisted service is colloquially known as "sanctuary." MAJORITY CONCLUSION: Upon review and consideration of all the evidence of record, the majority of the Board concluded that Petitioner's request warrants favorable action. The majority of the Board concurred with the available evidence provided by the Petitioner and, relying heavily on the opinion expressed in enclosure (3), the Board found the existence of an injustice warranting corrective action. The United States Court of Federal Claims determined that the Petitioner's involuntary separation from the Navy was improper and reinstated his last enlistment. Pursuant to this decision, Petitioner constructively served on active duty pursuant to the terms of his last enlistment contract and enlistment extension through 27 October 2010 and, therefore, the Board concluded that Petitioner is entitled to any active duty pay and benefits that he would have accrued between his improper discharge on 15 October 2008 and his EAOS on 27 October 2010. The Board determined that, in light of the Court's decision in enclosure (2) , Petitioner would have entered "sanctuary" on 3 March 2010 under section 1176(a) of reference (b), well before his 27 October 2010 EAOS. Pursuant to section 1176(a) of reference (b), Petitioner would have been retained on active duty until the date he was eligible for transfer to the Fleet Reserve on 2 March 2012. At the time of the invalid separation, the Petitioner's enlistment had already expired and he was not reenlisted. The date he would have been discharged was within two years of his qualification to transfer to the Fleet Reserve and he was not discharged under any other provisions of law. Therefore, the majority of the Board concluded that Petitioner should receive all active duty pay and benefits that he would have accrued between his 27 October 2010 EAOS and his 2 March 2012 twenty-years-of-service date. All reimbursed active duty pay and benefits will be offset by any pay and benefits earned by the Petitioner during this timeframe through alternate employment. The Board determined that the Petitioner could have requested transfer to the Fleet Reserve between 6 to 18 months prior to requested Fleet Reserve transfer date, unless a projected rotation date adjustment was necessary. The Board concluded that the Petitioner is eligible to submit a request to transfer to the Fleet Reserve to the Secretary of the Navy. MAJORITY RECOMMENDATION:· That Petitioner's naval record be corrected, where appropriate, to show: a. The removal of all documentation pertaining to the 9 July 2008 administrative separation board and the consequent separation from the naval service, including but not limited to the Report of Administrative Board dated 9 July 2008, t he Record of Proceeding of Administrative Board letter dated 12 August 2008, the Administrative Discharge letter dated 23 September 2008, the Adverse Performance Evaluation Report letter dated 15 October 2008, the performanc~ evaluation with the reporting period of 16 November.2007 to 15 October 2008, and the DD Form 214 (Certificate of Discharge from Active Duty) with the separation date of 15 October 2008. see enclosure (1), Petitioner's Tabs A through F ands ~horough u. b. That any material or entries inconsistent with the foregoing be corrected, removed, or completely expunged· from Petitione~'s record. c . That a new DD Form 214 (Certificate of Discharge from Active Duty) be i ssued with a separation date of 31 March 2012 , a HONORABLE characterization of service, a separation code of JFF, indicating "SECRETARIAL AUTHORITY." If the Petitioner requests and is subsequently approved for ~ransfer to the Fleet Reserve, the DD 214 will be amended t o REFLECT a separation code of NBD, indicating "SUFFICIENT SERVICE FOR RETIREMENT." d. A copy of this Report of Proceedings will be filed in Subject's naval record. MINORITY CONCLUSION: A minority of the Board substantially concurred with the comments of the majority, however, disagreed with the majority on one salient point. The minority carefully considered and weighed the evidence contained in enclosures (1) through (5) and determined that the Petitioner should no~ receive all active duty pay and benefits . that he would have accrued but did not receive between his 27 October 2010 EAOS and his 2 March 2012 t wenty-year-of-service date. The minority concluded that the Petitioner should receive constructive credit for retirement eligibility, but that the Petitioner should not receive pay and entitlements for a time period during which he did not serve. MINORITY RECOMMENDATION: That Petitioner's naval record be corrected as recommended by the majority of the Board, but f or the approval pay and allowances for the time period between 27 Oqtober 2010 and .2 March 2012. 4. Pursuant to reference (b) section 723.6(c), 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. The foregoing action of the for your review and action. . Executive Director Assistant General Counsel (Manpower and Reserve Affairs) 1000 Navy Pentagon, Rm 40548 Washington, DC 2035().1000