RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 October 2005
      DOCKET NUMBER:  AR20040010525


      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. John T. Meixell               |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 recomputation of his mandatory removal date
(MRD) to allow reassignment to a Reserve unit or active duty.

2.  The applicant states that he was involuntarily retired prematurely by
at least 3 years and denied the opportunity to attend drills, earn
retirement points, or return to active duty.  His MRD was incorrectly
calculated by subject matter experts who did not apply existing
regulations.  Title 10, United States Code (USC), Chapters 1406 and 1407
[sic] are specifically applicable to his case.  He also states that at
least 3 or 4 years were lost due to this error.  In February 1999, he was
advised that he could no longer attend drill with his unit, but he was not
discharged until 2001.  Also, the MRD computation should begin in 1972 or
possibly 1974, when he was commissioned in the Medical Services (MS)
Branch.

3.  The applicant provides copies of the National Defense Authorization Act
for Fiscal Year 2000, Title V (Military Personnel Policy), Section 515; his
official military personnel file; and his MRD Computation Sheet.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed in the
United States Army Reserve (USAR) from the Reserve Officers Training Corps
(ROTC), Infantry (IN) Branch, as a second lieutenant effective 12 May 1969,
with an educational delay to obtain a bachelor's degree.

2.  On 17 March 1970, the applicant's renewal of the educational delay was
approved until 31 March 1971.  On 25 January 1971, his renewal of the
educational delay was approved until May 1972.

3.  The applicant was promoted to first lieutenant effective 3 June 1972.

4.  The applicant was awarded a Bachelor of Science Degree in Pharmacy
effective 13 May 1972.

5.  The applicant entered on active duty for training (ADT) effective 27
February 1973 to attend the IN officer basic course (OBC).  He was released
from ADT effective 27 May 1973.

6.  On 5 October 1973, the applicant's request for enrollment in the MS OBC
was denied.  The applicant was advised that he could submit a request for
transfer to the MS Branch and then request enrollment in the MS OBC.
7.  His Annual Statement, dated 26 July 1974, shows he earned a total of
31 points creditable for retirement purposes for the retirement year 12 May
1973 to 11 May 1974.  His Annual Statement, dated 29 July 1976, shows he
earned a total of 15 points creditable for retirement purposes for the
retirement year 12 May 1975 to 11 May 1976.  His Annual Statement, dated 29
July 1977, shows he earned 15 points creditable for retirement purposes for
the retirement year 12 May 1976 to 11 May 1977.  His Annual Statement,
dated 28 July 1978, shows he earned 15 points creditable for retirement
purposes for the retirement year 12 May 1977 to 11 May 1978.

8.  On 8 May 1974, the applicant's request for branch transfer to the MS
Corps was approved.

9.  He was appointed in the USAR, MS Corps, as a first lieutenant,
effective 4 June 1974.  He was promoted to captain effective 2 June 1976.

10.  On 5 April 1979, the applicant was considered for the Mobilization
Designee Program, but was not selected.

11.  On 9 August 1979, the Chief, Removal and Transfer Branch, Personnel
Actions Division, St. Louis, Missouri, advised the applicant of his non-
participation in the USAR for failure to accrue a minimum of 27 points each
full retirement year.

12.  On 30 August 1979, the applicant requested consideration for a 1 year
waiver and submitted a statement outlining the circumstances which
prevented active participation.  On 19 September 1979, the applicant's
request for waiver of unsatisfactory participation for the retirement year
ending 11 May 1979 was approved.

13.  He was promoted to lieutenant colonel effective 31 May 1990.

14.  He was ordered to AD in support of Operation Joint Endeavor effective
27 February 1997.  He was released from AD effective 21 November 1997 and
assigned to the 324th Combat Support Hospital (CSH).

15.  On 17 November 1997, the Supervisory Staff Assistant, 324th Combat
Support Hospital, advised the Commander, Army Reserve Personnel Command,
St. Louis, Missouri, that, pursuant to the applicant's request, his MRD had
been changed to 22 October 2006.



16.  On 1 February 1999, the Deputy Chief of Staff for Personnel (DCSPER),
Headquarters, 81st Regional Support Command (RSC), Birmingham, Alabama,
advised the Commander, 5th Medical Group, Birmingham, Alabama, that the
request for extension for the applicant was being returned without action.
The applicant's MRD was 10 June 1997, based upon 28 years commissioned
service from his initial appointment.  The applicant's years served in the
Control Group counted as commissioned service time and not as a break in
service.  As of 10 June 1997, the applicant was no longer authorized to
perform any type of military duty.

17.  On 1 March 1999, the DSCPER, advised the applicant that upon screening
the Standard Installation/Division Personnel System-USAR, it was found that
he had reached his MRD on 10 June 1997.  In accordance with Army Regulation
140-10, Chapter 7; Title 10, USC; and the Reserve Officer Personnel
Management Act (ROPMA) of 1996, he must be removed from the Reserve Active
Status List (RASL) upon reaching his MRD.  The DCSPER also advised the
applicant that he was not authorized to perform any military duties for pay
or retirement points after reaching his MRD.

18.  On 2 March 2001, the Administrative Officer, 5th Medical Group,
Birmingham, Alabama, requested assistance from the 81st RSC in determining
the applicant's correct MRD.  He stated that the applicant was first
commissioned in the USAR on 12 May 1969, IN Branch.  The applicant was
unable to enter AD at the time and was asked to continue his education.  As
a result, the applicant enrolled at the University of Kentucky and received
a Bachelor of Science Degree in Pharmacy on 12 January 1973.  During that
time, the applicant applied for, and was approved for, at least two delays
of entry on AD.  The delay request, dated 17 March 1970, was approved with
a delay until 31 May 1971 and the second delay request, dated 25 January
1971, was approved with a delay until May 1972.  In accordance with Army
Regulation 135-101, dated 15 February 1984, Table 3-2[sic], note 3, an
individual who completes an educational program which would qualify for
constructive service credit (CSC) while a commissioned officer either on
active duty or in an active status will be treated as having CSC for the
period during which he/she pursued the education program.  As a result, the
applicant believes the time he pursued the Pharmacy degree should not be
counted toward computation of his MRD.  The Army apparently thought the
same way because on 23 May 1974, the applicant received a second memorandum
from the Army Reserve Personnel Command appointing him as a USAR officer
with the rank of first lieutenant.  The appointment does not include any
credit for "years of service in an active status."  On 17 November 1997,
the applicant


submitted a correction to his MRD, indicating the correct date as 22
October 2006, the day before he reached age 60.  There is no indication in
the Soldier's record that the correction was received, or acted upon, by
the Army Reserve Personnel Center.

19.  On 9 April 2001, the DCSPER, Headquarters, 81st RSC, requested
assistance through the Health Services Management Directorate, St. Louis,
Missouri, in determining the applicant's correct MRD.  The DCSPER stated
that the applicant was commissioned on 12 May 1969 as an IN officer.  While
serving as an IN officer he completed a Bachelor of Science in Pharmacy.
He was later appointed as a MS officer on 27 May 1974, with no breaks in
service.

20.  The applicant was separated from the USAR for maximum length of
service effective 27 June 2001 and transferred to the Retired Reserve.

21.  The applicant submits a copy of his MRD Computation Sheet that
indicates his date of initial appointment as 12 May 1969; total break in
service as 1 year, 2 months, and 18 days; authorized service time as 28
years; date reaches age 60 as 23 October 2006; and his MRD as 1 August
1998.  The applicant also submits an excerpt of the National Defense
Authorization Act for Fiscal Year 2000, Title V (Military Personnel
Policy), Section 515 (Computation of Years of Service Exclusion) that reads
the same as Title 10, USC, Chapter 1407, section 14706.

22.  The applicant's Retirement Points Summary Sheet shows that as of
11 May 1999, he had earned 21 years creditable service for retirement.  The
sheet also shows that he earned no qualifying years for retirement pay from
12 May 1969 through 11 May 1972 and 12 May 1973 through 11 May 1978.

23.  In an advisory opinion, dated 11 February 2005, the Director, Health
Service Personnel Management, Army Human Resources Command – St. Louis,
Missouri, stated that the applicant was erroneously removed from active
status in the Army Reserve 4 years before his actual MRD.  He took his oath
as a commissioned officer on 12 May 1969.  The date on which his period of
commissioned service actually begins should be the date he reported for his
OBC at Fort Benning, Georgia.  The report date on his OBC orders (RCPAC #T-
01-80037, dated 5 January 1973) was 1 March 1973, and the DD Form 214
(Certificate of Release or Discharge from Active Duty) issued at the
completion of that service shows his actual report date as 27 February
1973.  The actual period of his Authorized Educational Delay was 3 years, 9
months, and 15 days.  The


applicant's record clearly documents an authorized Educational Delay under
the provisions of Title 10, USC, section 14706 and Army Regulation 601-25,
paragraph 2-4.  The applicant's actual MRD, based on 28 years of
commissioned service, should be 1 March 2001.

24.  The opinion also stated that the statutory limitation of 28 years
commissioned service for lieutenant colonel was not altered by branch
changes or reappointments, unless there was a break in service.  The
applicant's records do not indicate any break in service, so his branch
transfer from IN to MS would not affect his MRD.  Calculations based on the
date of initial appointment, 12 May 1969, produced an MRD of 1 June 1997.
This is presumably the MRD used by the unit and Reserve Resources Command
that led to the applicant's involuntary transfer to the USAR Control Group
in 1999.  The waiver of unsatisfactory participation granted in 1979, has
no direct effect on the MRD.  Based on this information, it was recommended
that the applicant be granted credit for drills and retirement points for
the period 1 February 1999 through 1 March 2001.  Relief was not
recommended for the period 12 May 1974 through 11 May 1978 because the
applicant earned no retirement points at all during this period.  Even if
Mobilization Designee positions and active duty tours were not available,
other options could have earned points for him.  It is unlikely the calls
to his Personnel Management Officer would have left him unaware of the
options of attachment for points only or taking correspondence courses.

25.  The opinion was forwarded to the applicant for
acknowledgement/rebuttal on 30 March 2005.  In the applicant’s rebuttal,
dated 21 April 2005, he stated that he concurred with the Director's
conclusion that his erroneous and premature discharge occurred 4 years
before his actual MRD; however, the period of relief is not correct for the
following reasons:  (1)  The approved Waiver of Retention, dated 18
September 1979, is an authorized break in service which is not approved
unless the Soldier earns a minimum of 27 retirement points for at least the
next 2 consecutive years.  If this is not achieved, the waiver is denied
and results in active status removal.  He first joined the 324th General
Hospital in February 1979 and could not have earned sufficient retirement
points to qualify for the period 12 May 1978 through 11 May 1979.  As a
result, he required and thoroughly justified his reasons for non-
participation in correspondence dated 30 August 1979.  His request was
endorsed and encouraged by his commander. (2) He has been given the
explanation by at least 5 different personnel officers and logically all of
them cannot be wrong that the MRD is affected because the Waiver of
Retention does result in a legitimate break in service and the period is
not used in computation of the MRD.  The Waiver of Retention is either
considered to be an approved break in service or must be counted as
constructive service.

26.  The rebuttal also stated that he did not concur that the period 12 May
1974 through 11 May 1978 should not be included in the MRD calculation
because there was a break in service that was created by the Army.  He was
denied enrollment in the MSOBC Correspondence Course.  He then attempted to
apply for either active duty or assignment to a Reserve unit and was denied
because projected manpower requirements constraints precluded any
consideration.  All his attempts to continue in an active status in the
Reserves were denied.  In 1979, the Executive Officer (XO) at the 324th
General Hospital recognized his persistence in seeking a position with the
Reserve unit.  It was only through the XO's intervention that he was able
to obtain a pharmacy slot.  Since February 1999, he has lost many months of
drills, attendance at AT, and the opportunity to attend continuing
education programs.  He is confident that he would have received an
extension beyond his MRD and would have remained with his unit until the
retirement age of 60.  The 324th CSH dismantled in September 2005 and in
reality, he probably would have retired at that time.

27.  Title 10, USC, Chapter 1407, section 14507(a) provides the law for
removal from the RASL of Reserve Component officers in the grade of
lieutenant colonel. It states that removal will be on the first day of the
month after the month in which the officer completes 28 years of
commissioned service.  The maximum years of commissioned service is
computed from the date of initial appointment and total commissioned
service does not include breaks in service.

28.  Title 10, USC, Chapter 1409, section 14706(a)(3), provides the law for
a computing a Reserve officer's total years of service.  This includes all
service of the officer as a commissioned officer of a uniformed service
other than "service after appointment as a commissioned officer of a
Reserve Component while in a program of advanced education to obtain the
first professional degree required for appointment, designation, or
assignment to a professional specialty, but only if that service occurs
before the officer commences initial service on AD or initial service in
the Ready Reserve in the specialty that results from such a degree."

29.  Army Regulation 140-10, prescribes the policy and procedures for
assignments, attachments, details, and transfers of Reserve Component
Soldiers.  This regulation provides for the separation of Reserve
lieutenant colonels for maximum age and/or service.  It specifies that
lieutenant colonels may not exceed 28 years of service.  This regulation
also provides that removal must be accomplished within 30 days after the
date of completion of the required years of service.

30.  Title 10, USC, sections 12731 through 12739, authorizes retired pay
for Reserve Component military service.  Under section 12731(a)(1) and (2),
a Reserve Soldier must complete a minimum of 20 qualifying years of service
to be eligible for retired pay at age 60.  Pursuant to section 12732(a)(2),
after 1 July 1949, a qualifying year is one in which a Reserve Soldier
earned 50 retirement points or more.

31.  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.

32.  Army Regulation 135-101, prescribes the policies and procedures for
appointment of Reserve commissioned officers for assignment to the six
branches of the AMEDD.  This regulation specifies that an individual who
completes an educational program for the basic qualifying degree, while a
commissioned officer either on AD or in an active status will be treated as
having CSC.  The periods treated as CSC will not be treated as "prior
active commissioned service" in the computation of credit.

33.  Army Regulation 601-25, prescribes the policies and procedures for
delays in reporting for and exemptions from periods of AD, IADT, and
Reserve forces duty.  Paragraph 2-4 of this regulation specifies that a
ROTC participant completing postgraduate studies is authorized a delay.
Paragraph 2-5b specifies that ROTC applicants must be enrolled for full-
time graduate or professional study in an approved and recognized
institution of higher education.  An initial educational delay may be
granted in 1-year increments.  Paragraph 2-6 specifies that applicant will
submit applications for renewal of delay in accordance with the Reserve
Components Personnel Administration Center instructions.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to
credit for inactive duty training (IDT) points, membership points, and
annual training (AT) points for the period 1 February 1999 through 1 March
2001, with entitlement to pay, allowances, and retirement points.  These
credits would result in sufficient relief without returning him to an
active status.

2.  The evidence of record shows that the applicant was granted an
authorized educational delay and the actual period was 3 years, 9 months,
and 15 days.  Calculations based on his date of initial appointment of
12 May 1969, produced a MRD date of 1 June 1997.  The date on which his
period of commissioned service actually began should have been 27 February
1973, the date he reported for his OBC, and his actual MRD based on 28
years of commissioned service should have been 1 March 2001.  The applicant
was granted educational delays until he completed undergraduate studies
leading to a degree in Pharmacy.  Accordingly, the years 1969 through 1972
should have been excluded from the calculation to determine his MRD.  His
records did not indicate any break in service; therefore, his branch
transfer from IN to MS would not affect his MRD.  Therefore, the applicant
should have been retained in an active status from 1 February 1999 and
performed drills until he was separated on 1 March 2001.

3.  The evidence of record shows the applicant is not entitled to credit
for drills and retirement points for the period 12 May 1974 through 11 May
1978, because the applicant earned no retirement points at all during this
period.  The applicant states that he was denied a Mobilization Designee
position and there were no active duty tours available.  However, a minimum
of 50 points constitutes a qualifying year for retirement purposes and the
applicant could have earned those points through other options, i.e.,
taking correspondence courses.  A Reserve officer’s years of service must
include all service of that officer as a commissioned officer.  His
nonparticipation for the period 12 May 1974 through 11 May 1978 cannot be
credited as qualifying years of service.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__JBG__  _JRM___  __JTM___  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 partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by showing he continued to serve in an active status
from 1 February 1999 through 1 March 2001, with entitlement to all pay,
allowances, and retirement points as follows:  48 IDT points, 15 membership
points, and 15 AT points for a total of 78 points creditable for retirement
purposes for the retirement year 12 May 1998 through 11 May 1999; 48 IDT
points, 15 membership points, and 15 AT points for a total of 78 points
creditable for retirement year 12 May 1999 through 11 May 2000; and 48 IDT
points, 11 membership points, and 15 AT points for a total of 58 points
creditable for retirement year 12 May 2000 through 28 February 2001.

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 as pertains to
recomputation of his mandatory removal date to allow reinstatement to a
Reserve unit or active duty and credit for drills and retirement points for
the period 12 May 1974 through 11 May 1978.




                                  _    John T. Meixell   ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010525                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/20                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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