RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 AUGUST 2004
      DOCKET NUMBER:  AR2003098522


      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. Kenneth H. Aucock             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Margaret Thompson             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  In effect, the applicant requests that his record be corrected to show
he had 20 qualifying years for Reserve retired pay.

2.  The applicant states that he served in the Army Reserve for more than
       20 years.  When he applied for retired pay, the Army Reserve
Personnel Center (ARPERCEN) informed him that because he had reached age 60
with 18 years of qualifying service, he could not be credited with
qualifying years of service beyond age 60.  ARPERCEN informed him that they
would process his retirement papers if he were extended to age 62.  Prior
to retirement, he had requested extensions; however, during the last two
years of his service his unit told him to stop applying since his records
indicated that his MRD was in 2006.

      a.  He has not received any support in resolving the issues since the
mobilization of his unit.  He was informed to apply to this Board for
relief.  In May 2002 he was selected for promotion to lieutenant colonel.
He submitted all the necessary documents to be promoted; however, he
finally received a memorandum showing that he was considered but not
selected for promotion.  He was recommended for award of the Meritorious
Service Medal; however, the recommendation was never processed and his unit
did not follow-up on the recommendation.


      b.  His last drill was in October 2002, at which time he received an
order informing him that his active service was terminated on 1 September
2002.  Subsequent to his retirement, he was unable to obtain guidance from
his unit.  He served his country well for more than 20 years.  He requests
that the Army rectify the injustice done to him.

3.  The applicant provides the documents depicted herein.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 5 November 1939.  He was appointed a second
lieutenant in the Army Reserve in the Medical Service Corps, AOC (Area of
Concentration 68F) on 20 January 1982.  The appointment letter shows that
he was granted an age waiver.  The applicant accepted the appointment on
       16 February 1982.

2.  The applicant's chronological statement of retirement points, dated
          15 November 2002, shows that he had 20 qualifying years of
service on his retirement year ending date of 15 February 2002.  That
statement shows that he earned 12 retirement points subsequent to that date
until his transfer to the Retired Reserve effective on 1 September 2002.


3.  The applicant's personnel qualification record, dated 12 June 2002,
shows his mandatory removal date as 5 November 2006, that he was a major
with a date of rank of 13 February 1995, that he was eligible for promotion
to lieutenant colonel on 13 February 2002, and that he was once passed over
for promotion.  In this respect, he was notified on 20 November 2001 that
he had been considered but not selected for promotion by the selection
board that convened on 30 May 2001. The applicant was selected for
promotion by the 2002 Lieutenant Colonel AMEDD (Army Medical Department)
Selection Board, which adjourned on        28 June 2002.  A promotion list
prepared by the 63d Regional Support Command [the applicant's major Reserve
command], dated 16 October 2002, indicates that the applicant was selected
for promotion to lieutenant colonel.  On 19 November 2002 he completed a
promotion qualification statement accepting promotion to lieutenant
colonel.  That statement however does not indicate that he had a current
physical examination, that he met the regulatory height and weight
standards, or that he passed the Army physical fitness test.  The statement
was not completed by his commanding officer.

4.  The applicant spent most of career as an optometrist, AOC 68K, with the
6251st Army Hospital in Tucson, Arizona.  His evaluation reports show that
his rating officials considered him an excellent officer.  His awards
include the Army Reserve Components Achievement Medal and two awards of the
Army Commendation Medal.  On 5 May 2002 his commanding officer recommended
him for award of the Meritorious Service Medal; however, there is no
evidence that the recommendation was acted upon.

5.  The applicant's personnel qualification record, dated 12 June 2002,
shows that his mandatory removal date was 5 November 2006.

6.  On 18 October 2002 the 63d Regional Support Command published orders
reassigning the applicant to the Retired Reserve effective on 1 September
2002 because he had reached the maximum age for continued active service.

7.  The applicant completed, date unknown, an application for retired pay
benefits, to begin in January 2003.  A retired pay analyst in St. Louis
informed him on 21 January 2003 that she needed a copy of his extension
order, his retired point statement, and a copy of the order promoting him
to lieutenant colonel in order for her to act upon his request.

8.  10 U.S.C. Section 1415 states that a Reserve officer who is in an
active status and who reaches age 60 will be transferred to the Retired
Reserve if qualified and requests such transfer, or be discharged from the
Army Reserve.

9.  10 U.S.C. Section 14703 provides the Secretary of the Army authority to
retain in an active status any Reserve officers assigned to the Medical
Corps, the Dental Corps, the Veterinary Corps, the Medical Services Corps
(if the officer has been designated as allied health officer or biomedical
sciences officer in that Corps), the Optometry Section of the Medical
Service Corps, the Chaplains, the Army Nurse Corps, and the Army Medical
Specialist Corps.  An officer may not be retained in an active status later
than the date on which the officer becomes 67 years of age.

10.  Army Regulation 140-10, Section III, implements the above listed
statute and states in effect, that an officer who meets the applicability
criteria, e.g., optometrist in the Medical Service Corps, may be retained
beyond his mandatory removal date for length of service and age.  Retention
must be in the best interest of the Army.  The specialty of the officer
requesting retention must be short in total Army mobilization requirements,
and for troop program unit (TPU) officers must be short of total Army-wide
TPU requirements.  A TPU officer who does not possess a critical AOC which
is short of total Army-wide TPU requirements may apply for transfer to the
Individual Ready Reserve (IRR) with concurrent retention as an IRR member.

11.  Army Regulation 135-155 provides the policy for selecting and
promoting commissioned officers of the Army Reserve and states in effect
that a report of a selection board exists after the promotion board issues
a signed board report. The board report becomes a promotion list after
being approved by the President or his or her designee.  Before being
promoted an officer must meet certain requirements – be medically
qualified, have undergone a favorable security screening, meeting the Army
body composition program, etc.

12.  10 U.S.C., Section 1370 states in effect that in order to be credited
with satisfactory service in an officer grade above major [for Reserve
retirement], a person must have served satisfactorily in that grade as a
Reserve commissioned officer in an active status for not less than three
years.  A person who has completed at least six months of satisfactory
service in grade may be credited with satisfactory service in the grade in
which servicing at the time of transfer if the person transferred from an
active status as a Reserve commissioned officer solely due to the
requirements of a nondiscretionary provision of law requiring that transfer
because of age or years of service.

13.  In the processing of this case an advisory opinion was obtained from
the Transition and Separations Branch, Human Resources Command in St.
Louis.  That command recommended that the applicant's request be granted,
and he be granted an extension past age 60 to attain 20 qualifying years of
service for retirement.  The applicant concurred with the advisory opinion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had 20 qualifying years of service for Reserve
retirement, albeit that he attained the qualifying years after he reached
age 60, his mandatory removal date.  The applicant's Reserve command,
apparently realizing that he had served in an active status beyond his MRD,
transferred him to the Retired Reserve on 1 September 2002, and
subsequently, because he did not have an approved extension beyond his MRD,
the date that he turned 60, his request for retired pay was denied.

2.  As indicated in the advisory opinion from the Human Resources Command
in St. Louis, the applicant was allowed to drill and earn retirement points
beyond his mandatory removal date.  He should receive credit for his years
of service.  Consequently, in the interest of justice, the applicant's
records should be corrected to show that he was retained in an active
status beyond age 60 under the provisions of 10 U.S.C., Section 14703, and
that he be granted retired pay effective on 1 September 2002, the date of
his transfer to the Retired Reserve.
3.  The applicant did not request that his record be corrected to show that
he was promoted to lieutenant colonel and in effect that he be retired in
that grade; however, he implies that he should have been.  There is no
evidence, however, to show that he met the eligibility requirements for
promotion.  Even so, he could not have been transferred to the Retired
Reserve in the grade of lieutenant colonel simply because he would not have
served satisfactorily in that grade for the length of time required by law
prior to his transfer to the Retired Reserve.

4.  By the same token, the applicant did not request that his records be
corrected to show award of the Meritorious Service Medal, but states that
he was recommended for the award, but there was no follow-up by his unit on
the recommendation.  There is a recommendation for that award submitted
with his request; however, there are no orders or other evidence
authorizing award of this decoration.  Regulatory requirements require that
a recommendation for an award be entered administratively into military
channels within 2 years of the act, achievement, or service, to be honored.
 No military decoration, except the Purple Heart, will be awarded more than
3 years after the act or period of service to be honored.  In this respect,
the applicant should contact his former command concerning the disposition
of the recommendation for award of the Meritorious Service Medal.
Consequently, there is no action for the Board to take and the matter will
not be further addressed.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RW___  ___LE___  ___MT __  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by showing that he was retained in an active status
beyond age 60 under the provisions of 10 U.S.C., Section 14703, and by
granting him retired pay effective on 1 September 2002, the date that he
transferred to the Retired Reserve.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
promotion to lieutenant colonel and transfer to the Retired Reserve in that
grade.




            ___ Raymond Wagner___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003098522                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040826                                |
|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.       |136.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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