RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 4 March 2004
         DOCKET NUMBER: AR2003087893


         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
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Ms. Kathleen A. Newman		Chairperson
Mr. Kenneth L. Wright		Member
Mr. Eric N. Anderson		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).


1. The applicant requests that her Mandatory Removal Date (MRD) of 31 July 2002 be extended to 2009. In effect, she is requesting that her 1 April 2003 discharge from the US Army Reserve (USAR) be voided; that she be returned to an active USAR status; and that her MRD be adjusted to 31 July 2009.

2. The applicant states that, in March 1999, she submitted a request to extend her MRD to July 2009. On 4 November 2002, she reviewed her online military personnel file at the US Army Reserve Personnel Command (AR-PERSCOM) website and it showed that her MRD was changed to 21 July 2009. However, in February 2003, her MRD was changed back to the original 31 July 2002 date. The applicant states that she served in specialty 66C as a Psychiatric/Mental Health Nurse and that this was a critical specialty.

3. The applicant provides:

         a. An 11 March 2003 letter to the Board.

         b. A copy of an undated letter requesting the applicant’s retention beyond her MRD.

         c. A 7 March 2002 letter from the applicant requesting extension of her MRD.

         d. A copy of DD Form 2808 (Report of Medical Examination), dated 10 March 2003.

         e. A copy of DD form 2807-1 (Report of Medical History), dated 3 March 2003.

         f. Copies of an electrocardiogram (EKG) and laboratory results.

         g. A copy of a 31 March 2003 letter from the applicant to her Representative in Congress seeking assistance.

         h. A copy of the applicant’s online military personnel file, dated 4 November 2002, showing her MRD as 2009/07/21.

         i. A letter to this Board explaining the applicant’s non-selection for promotion to Lieutenant Colonel based on erroneous civilian educational data.

         j. Copies of various documents showing that the applicant received a Master of Science degree in Nursing.

CONSIDERATION OF EVIDENCE:

1. The applicant’s military records show that she was born on 21 July 1942 and was appointed a USAR First Lieutenant, Army Nurse Corps, in specialty 66C (Psychiatric/Mental Health Nurse) on 27 May 1987 at 44 years of age. She was promoted through the ranks to major on 20 June 1996. She reached age 60 on 21 July 2002 and she was honorably discharged on 1 April 2003, which was 6 months and 10 days beyond her 60th birthday.

2. A Chronological Statement of Retirement Points, dated 23 April 2003, shows the applicant completed 15 years of qualifying service for retirement purposes.

3. The applicant's records contains an advisory opinion from the Chief, Transitions and Separations Branch, AR-PERSCOM, dated 2 June 2003, which states, in essence, that the applicant was honorably discharged from the USAR effective 1 April 2003, per Letter Order Number D-03-312931, dated 26 March 2003. The applicant was separated because she had exceeded the maximum age of 60 and she did not have an authorized extension of her MRD (31 July 2002) under the provisions of Title 10, United States Code (USC), section 14703. Discharge from the USAR was mandatory because the applicant was not eligible for transfer to the Retired Reserve, nor was she eligible for an "18 year lock-in" under the provisions of Title 10, USC section 12646.

4. Additionally, the AR-PERSCOM advisory opinion states that some officers with Army Medical Specialties may be retained beyond the age of 60, possibly to age 67, but a request for extension must be made through the Health Services Directorate, AR-PERSCOM which then holds a board to ensure the request meets Secretary of the Army guidance. MRD extensions are granted based upon the needs of the service and the Transition and Separation Branch issues both extension and denial memoranda. The opinion states that the Transition and Separations Branch never received a request for an extension submitted on behalf of the applicant.

5. Further, AR-PERSCOM states that the applicant's unit (Headquarters, 80th Division (Institutional Training), Richmond, Virginia), issued the request for discharge and a copy of the notification of Mandatory Removal, Maximum Age. Discharge orders were issued on the date the applicant's unit requested discharge in conjunction with the notification. The applicant was not retained beyond the maximum age (60) under Title 10, USC section 14703, and was not eligible to be transferred to the Retired Reserve because she did not complete 20 years of qualifying service. The applicant's separation orders were issued in accordance with Title 10, USC section 14509 and 14515 and they are valid and in accordance with all provisions of current law. Therefore, the Chief, Transition and Separation Branch, AR-PERSCOM recommends that the applicant's separation orders not be revoked.
6. The applicant provided two rebuttal statements to the advisory opinion. She indicates she submitted her first request for an extension of her MRD in March 1999. On several occasions, she spoke to the noncommissioned officer in charge and she was led to believe her packet had been submitted and that she had done all that was required. When she saw on the AR-PERSCOM website that her MRD had been changed, she truly believed her request had been appropriately handled. In March 2002, she learned that she had been misled and she sent a second request for extension of her MRD by certified mail. The packet still had to go to Headquarters for approval, but, again, her MRD was changed to 2009 on the AR-PERSCOM website. She continuously approached the NCOIC concerning the status of her request and was told it had been sent forward. Her 60th birthday came and went and she still had no reply. In March 2003, she called Headquarters about her request and instead of receiving an answer, she was quickly discharged. She believes she has unfairly suffered because someone else failed to follow through to complete the task.

7. On 30 January 2004, AR-PERSCOM informed the staff of the Board that the applicant was denied selection for promotion to Lieutenant Colonel in 2002 due to civilian education; that the applicant's request for an extension of her MRD was never received; and that the applicant's Branch was not under strength in her specialty at the time of her separation in June 2003.

8. On 2 February 2004, the applicant was informed of AR-PERSCOM's contentions in paragraph 7 above. The applicant responded by stating that she was denied promotion to Lieutenant Colonel due to a misperception that she had not completed the required civilian educational requirement. A Bachelor of Science degree in nursing was required for promotion to lieutenant colonel. Her degree did not clearly identify that it was a degree in nursing. She provided the necessary documentation to show she completed the requirements for both a Bachelor of Science Degree in 1977 and a Master of Science Degree in 1984 and transcripts and certifications to show that she met the stipulated requirements for nursing. She also states that she applied for a Special Selection Board prior to April 2003 and again in April 2003, but she was not considered because she had been separated. The applicant believes that she meets the Army's standard for continued service and she is available to serve wherever required.

9. On 4 February 2004, PERSCOM Reserve Components Promotions advised the staff of the Board that the applicant is being reconsidered for promotion to Lieutenant Colonel under the fiscal year 2002 criteria because she was eligible for reconsideration prior to reaching age 60.




10. On 5 February 2004, the applicant was advised by the staff of this Board that AR-PERCOM was reconsidering her for promotion to Lieutenant Colonel and she indicated that she was aware of this fact.

11. Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers will be removed from an active status by discharge or, if qualified and if they so request, transferred to the Retired Reserve. Paragraph
7-3 provides guidance on maximum age. It states that field and company grade officers, not sooner removed for another reason, will be removed when they reach the maximum age of 60.

12. Title 10, U.S.C., section 14515 provides for the discharge or retirement of Reserve officers due to age. It states that a Reserve officer who is in an active status or on an inactive-status list who reaches the maximum age specified in sections 14509-14512 of this title for the officer's grade or position shall (unless the officer is sooner separated or the officer's separation is deferred or the officer is continued in an active status under other provisions of law), not later than the last day of the month in which the officer reaches that maximum age: (1) be transferred to the Retired Reserve, if the office is qualified and applies for such transfer; or (2) if the officer is not qualified or does not apply for transfer to the Retired Reserve, be discharged from the officer's reserve appointment.

DISCUSSION AND CONCLUSIONS :

1. At the time of entry into the USAR, the applicant would have been required to sign a waiver to acknowledge she understood she would receive a mandatory separation from the USAR at age 60, that she would not have completed the required 20 years of service to qualify for retirement, and that an extension was required to serve past her MRD. The acknowledgement is not included in the available record. However, the Government presumes regularity.

2. The applicant received a mandatory discharge from the USAR because she had passed the maximum age of 60, did not have an authorized extension of her MRD in accordance with the current laws then in effect, and she was not eligible for transfer to the Retired Reserve, or for the "18 year lock-in." The applicant's Branch was not under strength in June 2003 at the time of separation and there is no evidence available to show that her requests for extension of her MRD were ever acted on or approved by AR-PERSCOM.

3. The applicant contends that in 1999 and again in March 2003, just 1 month prior to reaching her MRD, she initiated requests for an extension to serve past her MRD.

4. The document the applicant provided from her online military personnel file at the AR-PERSCOM website shows her MRD as "2009/07/21" when the applicant reviewed it on 4 November 2002. No evidence exists to show how or why it was changed. Given that the applicant entered the USAR in 1987 and she was a field grade officer, she knew, or should have known, that she had the responsibility to ensure that her request to serve past her MRD had been approved.

5. The applicant is currently being reconsidered for promotion to Lieutenant Colonel. If, in fact, the applicant is selected for promotion to Lieutenant Colonel, she can request that this Board reconsider her request for an extension of her MRD.

6. The evidence available provides no basis for revocation of the applicant's discharge order, or the granting of a waiver for completion of her military service.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__ kan ___ __ klw ___ __ ena ___ DENY APPLICATION


The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.


                           Kathleen A. Newman
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003087893
SUFFIX
RECON
DATE BOARDED	20040304
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	136.0400
2.
3.
4.
5.
6.