From:   Chairman, Board for Correction of Naval Records 
To:     Secretary of the Navy 
 
Subj:     
 
 
Ref:    (a) Title 10 U.S.C. 1552 
 
Encl:   (1) DD Form 149 
        (2) HQMC ltr 1900 MMSR-4 of 5 Nov 19 
 
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 place him on the retirement list under Temporary Early Retirement Authority (TERA). 
                                              
2.  The Board, consisting of  reviewed Petitioner's allegations of error and injustice on 21 November 2019, 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 the 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 service with the Marine Corps in 2000.  On 9 December 2017, the Physical Evaluation Board (PEB) found Petitioner unfit for continued naval service due to left upper extremity pain.  He was assigned a 10% disability rating with qualified him for separation with severance pay.  Subsequent to his PEB findings, Petitioner was notified of eligibility under TERA to retire from the Marine Corps.  However, he failed to submit his request to be retired under TERA in a timely manner resulting in his discharge from the Marine Corps on 30 January 2018. 
 
     c.  In correspondence attached at enclosure (2), the office having cognizance over Petitioner’s request to be placed on the retirement list under TERA determined that he qualified for retirement under TERA.  The Advisory Opinion opined that Petitioner would have qualified for retirement under TERA had he submitted his request in a timely manner and his request been processed appropriately.  Based on this finding, they recommended Petitioner be allowed to retire effective 31 January 2018. 
 
CONCLUSION 
 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief. In this regard, the Board concurred with the Advisory Opinion at enclosure (2).  Specifically, the Board determined that Petitioner would have qualified for placement on the retirement list under TERA had he submitted his application in a timely manner.  The Board concluded depriving Petitioner of retirement benefits based on an apparent lack of diligence would perpetuate an injustice that already exists.  Therefore, they determined it appropriate to set aside his discharge and place him on the retirement list under TERA.  Petitioner will be subject to recoupment of any severance pay due to his change in status.   
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 
 
Petitioner’s naval record be corrected by placing Petitioner on the retirement list under TERA effective 31 January 2018 in lieu of discharge with severance pay.   
 
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 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.