PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 10 October 2002
         DOCKET NUMBER: AR2002074577


         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Roger W. Able		Member
Mr. John T. Meixell		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 records be corrected to show she was promoted to lieutenant colonel (LTC) on 9 November 1999.

3. The applicant states, in effect, that she was selected for promotion to LTC by a Special Selection Board (SSB) and notified that her date of rank was established as 9 November 1999. She claims that she met all the requirements for promotion to LTC and requested an extension of her mandatory removal date (MRD). However, she was placed in the Retired Reserve without any prior notification of the status of her extension request. To date, she has still never received an answer to her MRD extension request.

4. The applicant’s military records show that on 7 December 1982, she was commissioned a second lieutenant (2LT) in the Army Nurse Corps (ANC) of the United States Army Reserve (USAR), and that she is currently assigned to the Retired Reserve and is receiving retired pay.

5. On 18 April 2001, a SSB convened and considered the applicant for promotion under the criteria used by the 1998 RC AMEDD LTC Promotion Selection Board.

6. On 27 August 2001, Orders Number P08-30554, published by the Army Reserve Personnel Command (ARPERSCOM), directed the applicant’s placement on the Retired List, effective 3 December 2001, in the rank and pay grade of MAJ/0-4.

7. On 17 September 2001, a memorandum published by the Total Army Personnel Command, St. Louis, Missouri, informed the applicant that she had been selected for promotion to LTC by the SSB and that her date of rank would be 9 November 1999.

8. On 8 January 2002, the applicant submitted a request for an extension to her MRD. The applicant’s unit commander at the 75^th Combat Support Hospital, Tuscaloosa, Alabama, prepared a memorandum requesting that the applicant be extended beyond her MRD. The commander stated that the applicant was medically and physically qualified for retention as a critical care nurse. The commander further indicated that the applicant was an invaluable asset to the unit and its mission and that the unit was short of the required number of critical care nurses.

9. On 23 April 2002, the Deputy Chief of Staff, Personnel, 81^st Regional Support Command, Birmingham, Alabama, recommended approval of the applicant’s extension beyond her MRD and forwarded the request to ARPERSCOM personnel officials for final action.

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10. On 18 September 2002, ARPERSCOM published a memorandum notifying the Commander, 81^st Regional Support Command, that the applicant’s extension beyond her MRD had been approved through 31 December 2002.

11. In connection with the processing of this case, the Board requested of and received an advisory opinion from ARPERSCOM personnel officials, dated
16 July 2002. It states that the applicant is assigned to the Retired Reserve and is in receipt of retired pay. Although, a memorandum was published authorizing the applicant’s promotion to lieutenant colonel, she did not meet the requirements for this promotion. By regulation, Retired Reserve members who were removed from active status are ineligible for consideration for promotion to the next higher grade. This opinion fails to comment on what action was taken in regard to the applicant’s request for an extension beyond her MRD and fails to address the fact that the applicant was selected for promotion by a SSB using the 1998 criteria, which was while she was still in an active status. On 26 July 2002, the applicant was provided a copy of this advisory opinion in order to have the opportunity to respond. To date, she has failed to reply.

12. 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 7-3 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 filed grade or company grade officer reaches age 60. 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 64 is authorized. These extension provisions were applicable to all AMEDD ANC officers during the period in question.

CONCLUSIONS:

1. The Board notes the applicant’s contentions that she met all the requirements for promotion to LTC, that she requested an extension of her MRD, but was instead placed in the Retired Reserve without any prior notification on the status of her extension request, and it finds these claims have merit.

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2. The evidence of record confirms that the applicant was selected for promotion to LTC by a SSB, and promoted effective 9 November 1999, prior to the effective date of her transfer to the Retired Reserve. It further shows that the applicant requested an extension of her MRD in order to correct her records and to complete her promotion service obligation. However, this request was not approved until after the applicant had been placed on the Retired List.

3. The governing regulation provides exceptions to the mandatory removal of officers based on maximum length of service or age under certain circumstances. It allows the retention of RC officers in an active status in certain AMEDD areas of concentration until age 64. The applicant was eligible for retention under these provisions based on her active status as a Critical Care Nurse, and her chain of command confirmed her eligibility and supported her extension.

4. The Board notes the position taken by ARPERSCOM personnel officials in the advisory opinion they provided. This position is that the applicant was not eligible for promotion to LTC because she was in the Retired Reserve and receiving retired pay; and by regulation, Retired Reserve members who were removed from active status are ineligible for consideration for promotion to the next higher grade. However, the Board notes that the applicant’s promotion selection was made by an SSB prior to her transfer to the Retired Reserve. Further, the Board takes special note of the fact that ARPERSCOM officials failed to address MRD extension options with the applicant subsequent to her promotion selection and prior to her placement on the Retired List.

5. In view of the facts of this case, the Board concludes that the applicant should have been promoted to LTC on 9 November 1999, and that her MRD should have been extended for 3 years beyond that date in order to allow her to complete the promotion service obligation. Therefore, the Board concludes it would serve the interest of justice to grant the requested relief at this time.

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

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a. showing that the individual concerned was promoted to lieutenant colonel on 9 November 1999, and by providing her any back pay and allowances due as a result;

b. voiding her transfer to the Retired Reserve and revoking the Orders Number P08-305054 that directed her placement on the Retired List on
3 December 2001;

c. showing that she was extended beyond her MRD and remained in an active Reserve status through 31 December 2002, as approved by ARPERSCOM on 18 September 2002, and providing her pay and allowances for this period as if she had continued to serve and had been present at all scheduled drills and annual training for this period, minus any offsets of retired pay received for the same period;

d. transferring her to the Retired Reserve and placing her on the Retired List in the rank and pay grade of lieutenant colonel/0-5, effective 31 December 2002, and providing her retired pay accordingly.


BOARD VOTE:

__RJW__ __RWA__ __JTM__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION





                  ___ Raymond J. Wagner _
                  CHAIRPERSON

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INDEX

CASE ID	AR2002074577
SUFFIX
RECON
DATE BOARDED	2002/10/10
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2.
3.
4.
5.
6.