DEPAR.TMENT OF THE NAVY 

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

Docket No: 134-17

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

Subj: REVIEW OF NAVAL RECORD OF 

Ref: (a) IOU.S.C. §1552 
Encl: (1) DD Fonn 149 w/attachments 

(2) United States Court ofFederal Claims, No. , Order of8 Nov 16 
(3) Case Summary 
(4) BCNR ltr of 31Aug17 
(5) 
(6) BUPERS-OOJ ltr of 1 Mar 17 
(7) ACG (M&RA) email of29 Aug 17 

1. Pursuant to the provisions ofreference (a), Petitioner, a former enlisted member ofthe Navy, 
filed enclosure (I) with this Board in March 2014 and, after being denied relief in June 2015, 
petitioned the United States Court of Federal Claims. Enclosure (2) remanded this case to the 
Board for further consideration. Petitioner requests the following relief: 

a. Void Petitioner's 5 October 2010 discharge for misconduct 

b. Constructively restore him to active duty as an E-4 

c. Change Certificate ofRelease or Discharge from Active Duty (DD Fonn 214) to reflect 
expiration at his normal Expiration of Active Obligated Service (EAOS) on 28 July 11 with an 
Honorable (HON) characterization, and appropriate Separation Program Designator (SPD) and 
reentry code (RE-1).

d. Award back pay and allowances from his 5 October 2010 discharge to his 28 July 11 
EAOS 

e. Expunge records related to the 20 I 0 separation proceedings and discharge, to include, but 
not limited to the special adverse evaluation covering June 2010 to October 2010 

f. Restore Navy Enlisted Classification (NEC) and expunge any records related to his NEC 
removal 

2. Through enclosure (2), the Court remanded this case to the Board for Correction ofNaval 
Records (BCNR) with the following directions: 

a. Specifically consider whether Petitioner's time served while in the Delayed Entry 
Program (DEP) should be considered creditable for purposes of calculating whether he had 
accrued six years of active and/or reserve military service, entitling him to the right to elect an 
administrative separation board prior to his involuntary separation for misconduct. 

b. Consider whether the Naval Discharge Review Board's (NDRB) finding that 
Petitioner's time in the DEP constituted service in the "Inactive Standby Reserve. 

c. Decide whether Petitioner's time while in the DEP, under his particular circumstances to 
include authorization for E-2 advancement for responsibility in the Navy recruitment of four 
individuals, constituted voluntary Inactive Duty for Training (IDT), earning him reserve points 
for retirement. 

3. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 
23 October 2017 and pursuant to its regulations determined that the corrective action indicated 
below should be taken on the available evidence ofrecord. 

Documentary material considered by the Board consisted ofthe enclosures, relevant portions of 
Petitioner's naval records and applicable statutes, regulations and policies. In addition, the 
Board considered enclosure (4), which was previously provided to Petitioner's counsel, and the 
rebuttal statement provided by Petitioner's counsel in enclosure (5). Enclosures (3) through (5) 
apply. 

4. The Board, having reviewed all the facts ofrecord 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 enlisted in the Naval Reserve on 10 March 2004 under the DEP. While in the 
DEP, Petitioner was administratively advanced to E-2 as compensation for referring two 
individuals to the Navy. Petitioner commenced active duty service on 29 September 2004. 

c. Petitioner served without disciplinary incident until 13 February 2008 when he received 
nonjudicial punishment (NJP) for a 2-hour unauthorized absence and driving under the influence 
on two occasions. He received a reduction in rank and a forfeiture ofpay but retained his 
command's recommendation for retention. 

d. Petitioner successfully completed substance abuse treatment for alcohol in March 2008. 

e. On 13 August 2010, Petitioner was suspected ofbeing unfit for duty because he was under 
the influence ofalcohol. He denied being drunk on duty and subsequently refused NJP and 
requested trial by court-martial on advice of counsel. 

f. On 27 August 2010, administrative separation proceedings were commenced using 
notification procedures, which did not include an opportunity to elect an administrative 
separation board, by reason ofmisconduct due to commission ofa serious offense and alcohol 
rehabilitation failure. Petitioner submitted a statement to contest the charges and to request an 
administrative separation board because he had more than six years of total active and/or reserve 
military service. His request was denied. Excluding his time in the DEP, Petitioner's active 
service time, at notification on 27 August 2010, was five years, ten months, and two days. 

g. Petitioner was discharged with a general characterization of service on 5 October 2010 by 
reason ofmisconduct due to commission of a serious offense and assigned a RE-4 reentry code 
(not recommended for retention). 

h. The NDRB denied Petitioner's request for relief on 4 November 2012. In its opinion, the 
NDRB determined Petitioner's time in the DEP constituted service in the "Inactive Standby 
Reserve" and may be used to fulfill a portion ofthe enlistment contract but is not creditable for 
other purposes to include accumulation of creditable service when determining eligibility for the 
right to request an administrative separation board. 

i. An Advisory Opinion (AO) was sought for each of the issues the Court directed the BCNR 
to address. Enclosures (4), (6), and (7) apply. 

(1) Specifically consider whether Petitioner's time served while in the DEP should be 
considered creditable for purposes of calculating whether he had accrued six years of active 
and/or reserve military service, entitling him to the right to elect an administrative separation 
board prior to his involuntary separation for misconduct. 

The BCNR requested a legal opinion from the Assistant General Counsel for Manpower and 
Reserve Affairs' (AGC (M&RA)). The AGC (M&RA) disagreed with the advisory opinion 
provided by BUPERS-OOJ (see enclosure (6); referred to as the "NPC AO" in enclosure (3)) on 
the issue ofwhether time in the DEP constituted creditable service for purposes of calculating 
whether a servicemember was entitled to an administrative separation board. The AGC 
(M&RA) determined "uninterrupted service in the Delayed Entry Program (DEP) is creditable 
time for purposes of determining entitlement to an administrative separation board." 

(2) Consider whether the NDRB's finding that Petitioner's time in the DEP·constituted 
service in the "Inactive Standby Reserve." 

BUPERS-OOJ determined members in the DEP are in the Individual Ready Reserve (IRR) not 
the Inactive Standby Reserve. Enclosure (6) applies. 

(3) Decide whether Petitioner's time while in the DEP under his particular 
circumstances, to include authorization for E2 advancement for responsibility in the Navy 
recruitment of four individuals, constituted voluntary Inactive Duty for Training (IDT), earning 
him reserve points for retirement. 

Petitioner was administratively advanced to E-2 as the only compensation for referring two 
individuals to the Navy. Referrals to the Navy do not qualify as IDT, which is official training 
that maintains a reservist's readiness in the event he is activated, because enlistment referrals 
do not maintain the Petitioner's readiness and ability to deploy. Enclosure (6) applies. 

CONCLUSION: 

Upon review and consideration of all the evidence of record, the Board concludes that 
Petitioner's request warrants favorable action in the form ofpartial relief 

Applying the legal opinion ofthe AGC (M&RA), enclosure (7), the Board determines Petitioner 
was entitled to an administrative separation board because his uninterrupted time in the DEP 
combined with his active duty service time exceeded six years oftotal active and reserve military 
service. Denial of Petitioner's procedural entitlement to an administrative separation board 
constitutes probable material error or injustice. Without an administrative separation board, the 
appropriate remedy for Petitioner is to constructively allow him to complete his active duty time 
as an E-4 and separate at his EAOS, which is the expiration of his enlistment service contract. 

The Board, concurring with BUPERS-OOJ's advisory opinion, finds no material error or injustice 
and determines Petitioner was a member ofthe IRR while in the DEP and did not earn reserve 
points for retirement because the enlistment referrals did not qualify as IDT. 

The Board, after reviewing Petitioner's record without the disputed misconduct which allegedly 
occurred in August 2010, concludes Petitioner's record warrants an honorable characterization of 
service. The Board notes Petitioner, even after receiving NJP in February 2008, continued to 
perform exemplary and maintained the command's recommendation for retention. 

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

RECOMMENDATION: 

Petitioner's naval record be corrected to show that on his EAOS, 28 July 2011, Petitioner was 
discharged with an honorable characterization of service, his narrative reason for separation was 
"expiration ofactive obligated service'', the separation authority was "MILPERSMAN 191O
J04", his separation code was "MBK", and his reentry code was RE-I. 

Petitioner be issued a new Certificate of Release or Discharge from Active Duty 
(DD Form 214). 

Petitioner be paid all back pay and allowances from 5 October 2010 to his EAOS of 28 July 
2011. 

Petitioner's naval record be further corrected by removing all records associated with Petitioner's 
administrative separation proceedings, to include but not limited to, the special adverse 
evaluation covering 16 June to 5 October 2010. 

Petitioner's naval record be further corrected by restoring his 8482/Pharmacy Tech NEC and 
removing all records associated with its removal.  

Upon request, the Department ofVeterans Affairs be informed that Petitioner's application was 
received by the Board on 26 March 2014. 

5. 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 ofthe Board's proceedings in the above entitled matter. 
Recorder 

6. Pursuant to the delegation ofauthority set out in Section 6(e) of the revised Procedures of the 
Board for Correction of Naval Records (32 Code of Federal Regulation, 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. 


Executive Director