MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 August 2003
         DOCKET NUMBER: AR2003084389

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

Mr. Carl W. S. Chun		Director
Mr. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. James E. Anderholm		Member
Ms. Linda M. Barker		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: In effect, that her retirement point credit be corrected, that she be promoted to lieutenant colonel, and that she be given retired pay for nonregular service.

APPLICANT STATES: That she has never missed any time from the U.S. Army Reserve (USAR). She submitted a request for retention beyond age 60 two months prior to turning age 60, and was led to believe that her request had been approved. It wasn’t until two years later that she discovered that her request had been disapproved. As for her promotion, she made the promotion list for lieutenant colonel but her unit did not follow up on the paperwork.

EVIDENCE OF RECORD: The applicant's military records show:

She was born on 9 November 1939. She was commissioned as a second lieutenant, USAR, Army Nurse Corps, on 26 August 1982 and entered on active duty the same day. She was promoted to captain and then major on 1 June 1994.

She was honorably released from active duty on 15 April 1999 due to the completion of her required active service. She had 16 years, 7 months and 20 days of active duty.

On 9 November 1999 the applicant reached age 60.

On 4 June 2001, the applicant was honorably discharged from the USAR.

An ARPC Form 249-2-E, prepared on 18 May 2001, shows that the applicant earned 260 retirement points for her Retirement Year Ending (RYE) 25 August 1999, and she earned 82 retirement points for her RYE 25 August 2000.

In the processing of this case an advisory opinion was obtained from the Army Reserve Personnel Command (AR-PERSCOM). The AR-PERSCOM stated that while the applicant submitted a request to be retained on an active status beyond age 60, it was returned to her because it was incomplete. She then refused to submit the documentation required to process her request for extension. Since the applicant did not have an approved extension to be retained beyond age 60 and she did not qualify for retired pay at age 60, she was discharged as an operation of law when she reached age 60.

The applicant was provided a copy of this advisory opinion and submitted documentation which she says will support her contention that her request to be retained beyond maximum age was sent before she turned age 60. That documentation consists of requests for retention dated 20 and 27 September 1999, respectively. She also submits electronic mail (e-mail) from her to the Army Reserve Personnel Command (AR-PERSCOM) dated 18 April 2000 in which she states that she was told she had an 18-year “lock-in” to achieve 20 qualifying years of service before she turned age 64. She submits the
AR-PERSCOM’s e-mail response to her inquiry informing her that Army Reservists do not have an 18-year lock-in for maximum age, and asking if she [the AR-PERSCOM action officer] did not furnish the applicant a copy of the Army Regulation which covers mandatory removal criteria. She submits her response to the AR-PERSCOM’s e-mail stating that the AR-PERSCOM action officer “sent me a copy of the regulation and the portion that refers to me was not highlighted.” She submits the AR-PERSCOM’s response saying that upon reviewing the applicant’s records, “I find many questions and not many answers.  When you took your commissioning in 1982, you were 42-43 years old.  Did you sign a statement at that time indicating you would not be able to complete 20 years of commissioned service? Also, I find your DD 214 from Active Duty dated 15 Apr 99 gives you 16 years of Active components Service. This is incorrect. Your retirement data is missing the years 1990-Apr 1999, with NO information documented for the years 1995-Apr 99. You came into the USAR in 1982, you should have 18 years of service. [The applicant], if you have documentation of the missing retirement information, submit it to your unit for update. I would suggest you sit with the [Unit Administrator] as [he or she] update[s] your data so you can be sure it is inputted correctly. If you need any more guidance, let me know.” She submits a letter of understanding to an Army Reserve commander stating that she submitted a request to be retained beyond maximum age prior to turning age 60, and that she understands that she requires 20 years of creditable service for retirement. She submits a letter she wrote to her elected representative on 16 April 2001, and a letter she wrote to the American Legion.

Title 10, Section 14509, requires the separation of officers below the rank of brigadier general when the officer becomes 60 years of age.

Title 10, Section 14703, provides that the Secretary of the Army may, with the officers’ consent, retain USAR officers assigned to the Medical Corps, the Dental Corps, the Veterinary Corps, and the Medical Service Corps, until a maximum of age 67.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1. While the applicant submitted a request to be retained in an active status beyond age 60, the AR-PERSCOM contends in its advisory opinion that the applicant’s request was incomplete and she refused to submit the documentation required to process her request.

2. Evidence of record shows that the applicant submitted a request to be retained beyond maximum age less than two months prior to reaching age 60. The applicant was furnished a copy of the regulation that provides the guidance for requesting retention beyond age 60. However, by her own admission, she only read that portion of the regulation which was highlighted. Five months after the applicant turned age 60, her military records were missing documentation required to process her request for extension. It was suggested to the applicant that she sit down with her unit administrator to insure her records were updated. There is no indication that she took this suggestion.

3. It becomes apparent that while the applicant could have been approved for a waiver to be retained beyond age 60, her records were not sufficiently up to date for her request to be processed. Five months after her maximum age, the date she was required to be removed from an active status as an operation of law, she questioned her status. Even then, it would appear that she did not follow the advice she was provided.

4. The applicant repeatedly returns to an argument that she submitted her request for retention beyond maximum age prior to her turning age 60. Neither the AR-PERSCOM or the Board disputes this fact. However, submitting a request is not the same as having the request approved. In this case, her request was not approved. The applicant did not have an entitlement to have her request for retention approved, as she apparently believes.

5. As such, she was properly separated at age 60 as an operation of law.

6. Since the applicant was properly separated prior to earning 20 qualifying years of service, she does not meet the statutory requirements for retired pay.

7. The Board believes that the applicant failed in her responsibility to manage her own career. It would be reasonable to expect a major with over 16 ½ years of active duty to know mandatory removal rules and to follow up on requests which are time sensitive.

8. The applicant has not submitted any documentation which would show that she was improperly denied promotion.

9. Likewise, she has not submitted any documentation which would show that her retirement points are improper. However, the applicant is advised that the award of retirement points is an administrative matter (unless being granted for periods when a soldier was erroneously or unjustly separated) that is handled by the AR-PERSCOM.



10. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___jea ___ ___rvo__ ___lmb__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2003084389
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030814
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.