PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 24 July 2001
         DOCKET NUMBER: AR2001056476


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. William Blakely		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Margaret V. Thompson		Member
Mr. William D. Powers		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that her date of discharge from the United States Army Reserve (USAR) be changed from 30 September 1999 to
16 October 2000.

3. The applicant states, in effect, that she was allowed to drill beyond her mandatory retirement date (MRD) based on an electronic mail (Email) from a
70^th Regional Support Command (RSC), Seattle, Washington, Deputy Chief of Staff, Personnel (DCSPER) official, dated 9 August 1999. This e-mail notified her unit her mandatory removal date (MRD) had been extended to 10 August 2007, and that this date had already been entered in the official Army personnel files (SIDPERS). She states that based on this information she continued to drill for 13 months and during this timeframe she was promoted to major and received orders to attend annual active duty training (ADT). She claims that later, in February 2001, her request for an extension was denied and she was retroactively discharged from the USAR, effective 30 September 1999. She further states that the discharge date of 30 September 1999 puts her drill and ADT pay earned for the 13 months in jeopardy and the loss of this pay would be unjust and create a financial hardship on her. She concludes that based on phone conversations with her unit, the correspondence approving her MRD extension from DCSPER, 70^th RSC officials, and her promotion orders to major she had every reason to believe that she was authorized to continue to serve in the USAR. In support of her application, she submits the enclosed copies of her two requests for an extension of her MRD, a copy of her promotion memorandum to major, a copy of an Army Reserve Personnel Command (ARPERSCOM) memorandum, dated 12 February 2001, which contained the subject retention beyond MRD, and a copy of her discharge orders, which were issued by the United States Army Reserve Command, Fort McPherson, Georgia.

4. The applicant’s military record show that she was born on 10 August 1939 and on 29 September 1990, she was commissioned a second lieutenant (2LT) in the Army Nurse Corps (ANC of the United States Army Reserve (USAR). Based on her age and appointment date, her MRD was established as 30 September 1999.

5. On 11 April 1999, the applicant submitted a request for an extension to her MRD and on 9 August 1999, a 70^th RSC DCSPER official notified her unit via
e-mail that based on an age waiver granted the applicant in 1990, her MRD had been changed to 10 August 2007 and that this date had been entered into SIDPERS.

6. In August 1999, the applicant was notified by her unit that her MRD had been extended and that she should plan to attend the August drill. She continued to attend unit drills through October 2000, and during this timeframe she was promoted to major and received orders to attend ADT.
7. On 23 September 1999, an ARPERSCOM memorandum authorized the applicant’s promotion to major, effective 31 August 1999. On 19 April 2000, Orders Number 014744, issued by the 70^th RSC, ordered the applicant to annual ADT for 15 days, effective 9 May 2000.

8. In October 2000, the applicant was advised by unit officials that she should no longer attend unit drills because her status had been called into question. A short time later in November 2000, she was advised to submit another request for an extension of her MRD, which she did on 29 November 2000.

9. Orders Number 01-004-003, dated 4 January 2001, issued by Headquarters, United States Army Reserve Command, Fort McPherson, Georgia, confirms she was discharged from the USAR on 30 September 1999.

10. An ARPERSCOM memorandum, dated 12 February 2001, shows that her request for extension to her MRD was denied because she was serving in a high density area of concentration. It also indicated that because the applicant had remained on the active Reserve status list beyond her MRD, without an approved extension, she should apply to this Board to receive service credit for the retirement points earned after her MRD and she was provided an application form to this Board (DD Form 149).

11. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR soldiers. Chapter 7 contains guidance on mandatory removal from an active USAR status and paragraph 7 outlines the policy for mandatory removal upon reaching the maximum age. It states, in pertinent part, that soldiers not sooner removed for another reason will be removed when they reach maximum age. Removal date will be the last day of the month in which a field grade or company grade officer reaches age 60.

12. Section III (Army Medical Department (AMEDD) Officer Removal Exceptions and Processing Procedures) contains guidance for exceptions to the mandatory removal of officers based on maximum length of service or age. Paragraph
7 states, in pertinent part, that under certain circumstances the retention of Reserve Component (RC) officers in an active status in certain AMEDD areas of concentration until age 67 is authorized.

13. Army Regulation 135-32 (Army National Guard and Army Reserve Retention in Active Status after Qualification for Retired Pay) prescribes policies, procedures, and responsibilities for retaining certain commissioned officers in an active Reserve status.

14. Paragraph 1-6 contains the guidance for retention of eligible Army Medical Department (AMEDD) officers and states, in pertinent part, that Army Nurse Corps officers are eligible for sequential periods of retention in an active status up to the maximum age of 67 and will also be retained for credit toward
non-Regular retired pay on the basis of operational necessity.

CONCLUSIONS:

1. The Board noted the applicant’s contention that she should receive service credit for the time she served subsequent to her MRD and that any pay and allowances she earned for this service should not be collected back by the government, and finds these claims have merit.

2. By law and regulation, officers in the Army Nurse Corps may be retained in an active RC status beyond age 60 and after attaining eligibility for retired pay if it serves the best interest of the Army.

3. It is clear the applicant’s unit received what they believed to be a valid approval of the applicant’s MRD extension request via an e-mail from a 70^th RSC DCSPER official in August 1999 and based on this they allowed her to continue to attend drills and perform ADT tours after she reached age 60. Further, Army personnel files in SIDPERS were changed to reflect the applicant’s MRD had been adjusted to 10 August 2007, which confirms that they believed the applicant’s MRD extension request had been approved.

4. In the opinion of the Board, the e-mail, dated 9 August 1999, the fact that the applicant was promoted to major on 31 August 1999, and the actions taken by unit officials as a result gave the applicant the reasonable impression that her extension had been approved. In addition, these actions would have given the applicant the reasonable expectation that she was authorized compensation for the service she performed and that this service would be creditable for retired pay purposes.

5. The Board is convinced by the facts and circumstances in this case that it would serve the interest of justice and equity to grant the requested relief. Thus, the Board concludes that it would be appropriate that the applicant’s promotion to major be considered valid and that all service she performed after reaching her MRD at age 60, up until 16 October 2000, be creditable for retired pay purposes.

6. In addition, the Board finds that it would be appropriate that the pay and allowances earned by the applicant for service she performed subsequent to her MRD be authorized, and not subject to collection action by the government.

7. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was promoted to the rank and pay grade of major/0-4 on 31 August 1999; that she served in an active status in the USAR on an approved extension beyond her MRD until 16 October 2000; that she is entitled to have all service she performed during this period counted as creditable service for retired pay; by showing that all pay and allowances earned for USAR service during the period 19 August 1999 through 16 October 2000 were authorized and are not subject to collection by the government; and by showing she was transferred to the Retired Reserve on 1 November 2000.

BOARD VOTE:

__JNS__ __ MVT __ __WDP__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __John N. Slone__
                  CHAIRPERSON

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INDEX

CASE ID	AR2001056476
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/07/24
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.303	129.01
2.
3.
4.
5.
6.