RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      15 November 2005
      DOCKET NUMBER:  AR20040010456


      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. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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.  The applicant requests, in effect, correction to her record to show
that she completed 20 years of qualifying service for retired pay benefits.

2.  The applicant states that she was given 5 years and 10 months
constructive service credit (CSC) for her degree and professional
experience.  She would like that time acknowledged to bring her tenure to
more than the 20 years, enough to qualify for retirement and her pension.

3.  The applicant provides copies of her Appointment in the United States
Army Reserve (USAR) memorandums, her response from the Officer Procurement
Division, Reserve Components Personnel and Administration Center, St.
Louis, Missouri, her Chronological Statement of Retirement Points, and her
reply from the Chief, Transition and Separations Branch, US Army Reserve
Personnel Command (AR-PERSCOM), St. Louis, Missouri.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on 26 November 1997, the date of her reassignment to the Retired
Reserve.  The application submitted in this case is dated 30 September but
was not received for processing until 24 November 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show that she was appointed in the
USAR, Army Nurse Corps, as a first lieutenant, effective 19 November 1979,
with 5 years and 10 months CSC, at age 38.   Her appointment memorandum
does not show she was appointed with a waiver of the age requirement.

4.  On 23 January 1980, the Officer Procurement Division, Reserve
Components Personnel and Administration Center, St. Louis, Missouri,
responded to the applicant's questions about her awarded CSC at the time of
appointment.

5.  She was promoted to captain effective 14 January 1981 and to major
effective 17 January 1988.
6.  She was reassigned from a troop program unit to the Individual Ready
Reserve effective 19 November 1994.  Her Chronological Statement of
Retirement Points, dated 19 December 1996, shows that she earned no
additional points after her retirement year ending 18 November 1994
(through 18 November 1996).

7.  Her statement also shows that as of her retirement year ending 18
November 1996, she had 15 qualifying years of service for retirement and 17
years, 1 months and 6 days total service.  She was not issued, nor was she
eligible to have issued a notification of qualification for retired pay at
age 60 (20-Year Letter) prior to her separation.

8.  The Office of Promotions, Reserve Components, Army Human Resources
Command – St. Louis, Missouri, verified that she was considered and not
selected for promotion to lieutenant colonel by the 1997 Army Medical
Department (AMEDD) Reserve Components Selection Board that convened on
7 October and recessed on 17 October 1997.

9.  She was reassigned to the Retired Reserve as a major effective 26
November 1997 after having completed 20 or more years of service.  At the
time of her reassignment to the Retired Reserve, she had completed 15
qualifying years of service for retirement.

10.  The Office of Promotions, Reserve Components, Army Human Resources
Command – St. Louis, Missouri, also verified that she was considered and
not selected for promotion to lieutenant colonel by the 1998 RCSB AMEDD
convened on 5 June and recessed on 1 July 1998, after her discharge.

11.  She reached her 60th birthday on 2 June 2001.

12.  On 4 May 2004, the Chief, Transition and Separations Branch, US Army
Reserve Personnel Command (AR-PERSCOM), St. Louis, Missouri, advised the
applicant an audit of her military record showed that she completed 15
qualifying years of service for retirement as shown on her chronological
record of military service.  Accordingly, she was ineligible to receive
retired pay.

13.  Army Regulation 135-101, prescribes the policies, procedures, and
eligibility criteria for appointment of commissioned officers in the
Reserve in the six branches of the AMEDD.  This regulation specifies that
CSC will be granted for periods of professional training and experience
accrued after receipt of the basic qualifying degree.  Entry grade credit
of 3 years or more, but less than 7 years,
provides the entry grade of first lieutenant.  Authorized credit in excess
of the minimum required for appointment to the appropriate grade will be
used to adjust the date of rank within the grade.

14.  Army Regulation 135-101, in pertinent part, also specifies that at the
time of appointment in the USAR and assignment to the ANC, with or without
active duty, officers appointed on or after their 33rd birthday will sign a
statement on waiver of age requirement:  "I understand that I may not be
able to complete 20 years of qualifying service for retirement purposes
under the provisions of Title 10, USC 1331 and 1332 prior to being removed
from an active status under applicable laws and regulations."

15.  Army Regulation 140-10, in effect at the time, set 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 active status and states, in pertinent part, that Soldiers removed
from an active status will be discharged or, if qualified and if they so
request, will be transferred to the Retired Reserve.

16.  Army Regulation 135-180 (Army National Guard and Army Reserve-
Qualifying Service for Retired Pay Nonregular Service), indicates, in
pertinent part, that to be eligible for retired pay, an individual does not
need to have a military status at the time of application for retired pay,
but must have (1) attained age 60; (2) completed a minimum of 20 years of
qualifying service; and, (3) served the last 8-years of his or her
qualifying service as a Reserve Component soldier.  The requirement to
serve the last 8 years in a Reserve Component has since been amended to the
last 6-years.

17.  Army Regulation 135-180 also specifies, in part, that to be eligible
for retired pay an individual must have attained age 60, and completed a
minimum of 20 years of qualifying service; and that subsequent to 1 July
1949, qualifying service is granted only for each year of service an
individual earns 50 or more retirement points.  It also specifies that
eligible members must make application for retired pay.

18.  The term “good years” is an unofficial term used to mean years in
which
50 or more retirement points are earned during each year, and which count
as qualifying years of service for retirement benefits at age 60.

19.  Public Law 92-425, the Survivor Benefit Plan, enacted 21 September
1972, provided that military members could elect to have their retired pay
reduced to provide for an annuity after death to surviving dependents.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant had completed 15 years
of qualifying service for retirement purposes at the time of her
reassignment to the Retired Reserve.  A review of her records confirmed
that she had not completed a minimum of 20 qualifying years of service for
retired pay benefits at age 60.

2.  Notwithstanding the fact that she did not participate in the Reserve
and earn the additional points for "good years" of service, the reason for
her separation was erroneous.  It is clear that the USAR improperly
published orders transferring the applicant to the Retired Reserve.  She
had not completed the indicated 20 years qualifying service for retirement
purposes as shown on her reassignment orders.  There is also no evidence
the applicant voluntarily requested transfer to the Retired Reserve as
required by regulations.

3.  Through no fault of her own, the applicant was unable to reach normal
retirement eligibility.  Based on the foregoing, the applicant’s Department
of the Army records should be corrected by revoking the orders reassigning
her to the Retired Reserve on 26 November 1997, by showing she continued to
serve in the Individual Ready Reserve through 26 November 1999, and
completed 20 years of qualifying service for retirement purposes.  Through
no fault of her own, the applicant was unable to finish 20 years of
qualifying service to enable her to reach normal retirement eligibility.

4.  The evidence of record shows that the applicant was awarded CSC at the
time of her appointment entitling her to an entry grade of first
lieutenant.  There is also no evidence she was awarded a waiver of age
requirement at the time of her appointment.  There are no provisions for
including awarded CSC with years of service to equal 20 qualifying years of
service for retirement purposes.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

_SK_____  _JTM____  __RLD _  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief and to excuse failure to timely file.
As a result, the Board recommends that all Department of the Army records
of the individual concerned be corrected:

      a.  by revoking Orders C-11-748961, dated 26 November 1997,
reassigning her to the Retired Reserve;

      b.  by showing she continued to serve in the Individual Ready Reserve
from 26 November 1997 through 26 November 1999;

      c.  by crediting her with 35 inactive duty for retirement points only
and 15 memberships points for a total of 50 points for each year from
19 November 1994 through 18 November 1999, with no entitlement to back pay
and allowances;


      d.  by issuing a 20-Year letter and a corrected statement of her
retirement points; and


      e.  by showing she was reassigned from the Individual Ready Reserve in
the rank of major effective 26 November 1999 and transferred to the Retired
Reserve with entitlement to retired pay upon application with payment from
the approval date of the Board proceedings, and participation in the
Survivor Benefit Plan, if so elected.

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
including her awarded CSC with years of service to equal 20 qualifying
years of service for entitlement to receive retired pay at age 60.




                                  ___   Stanley Kelley____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010456                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051115                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.00                                  |
|2.                      |136.02                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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