RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 November 2004
      DOCKET NUMBER:  AR2004104590


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 that his retirement orders be amended to show he
retired effective 16 March 2004.

2.  The applicant states, in effect, that he was deployed to Iraq for about
one year.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty); his active duty orders; his deployment orders
with attached personnel roster; his deployment extension orders; his
retirement orders; his demobilization orders; a statement of service
(Operation Enduring Freedom/Iraqi Freedom); a letter of release; his
release from active duty orders; separation leave records; an ARPC Form
4109 (Request for Extension of Mandatory Removal Date (MRD)) with
endorsement; and a letter from the Defense Finance and Accounting Service
(DFAS) dated 25 August 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 1 February 1944.  After having had prior
enlisted service, he was appointed a first lieutenant in the U. S. Army
Reserve (USAR) on 7 November 1981 in the Veterinary Corps.

2.  On 2 January 2002, the U. S. Army Reserve Personnel Command (AR-
PERSCOM) sent the applicant an application for retired pay.  His
application was received by that command on 2 April 2002.

3.  On orders dated 5 March 2003, the applicant was ordered to active duty
with his unit.  On orders dated 7 March 2003, his unit was deployed to
Kuwait in support of Operation Enduring Freedom for a period not to exceed
2 years.  He arrived in Iraq on 2 April 2003.

4.  AR-PERSCOM orders dated 28 November 2003 placed the applicant on the
retired list effective 1 February 2004.

5.  Orders dated 5 January 2004 attached the applicant to Fort Bragg, NC
for demobilization with a report date of 6 January 2004.  He apparently did
not depart Iraq at that time.

6.  Around 22 January 2004, the applicant completed an ARPC Form 4109
requesting extension of his MRD.  On 22 January 2004, his brigade commander
recommended approval of a 3-year MRD extension.  Apparently, his request
was disapproved or no action was taken on it.  On 26 January 2004, his unit
gave its permission for him to depart the theater of operations.

7.  Orders dated 11 February 2004 released the applicant from active duty
effective 16 March 2004.  The separation leave record provided by the
applicant shows he took transition leave from 15 February to 16 March 2004.


8.  On 25 August 2004, DFAS determined the applicant was entitled to pay
and allowances for the period 1 to 16 March 2004.

9.  In the processing of this case, an advisory opinion was obtained from
the Retirements and Annuities Section, Transitions and Separations Branch,
U. S. Army Human Resources Command – St. Louis (formerly AR-PERSCOM).  That
office opined that the applicant was aware of the requirements to retire.
Title 10, U. S. Code sections 14509 and 14515 require that the officer be
either retired or discharged at age 60 unless provided with an extension by
the Health Services Review Board on behalf of the Secretary of the Army.
No such extension was granted as his specialty was overstrength.  Further,
he submitted his application for retirement in March (sic) 2002 and
requested that he be retired on his 60th birthday on 1 February 2004.

10.  The advisory opinion further noted that all STOP LOSS messages state
 that soldiers must be released as specified by law.  The applicant and his
unit were aware of that fact as he was returned to the States in February
2004, apparently to outprocess based on the practice of retiring soldiers
at the end of the month.  That was done despite orders from that Command
retiring the soldier on 1 February.  That office recommended disapproval of
the applicant's request.

11.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  The applicant stated that his unit was scheduled to
leave the theater around October or November 2003 but the Army extended the
time in theater to one year.  His MRD did not surface until late summer or
fall of 2003.  At that time, he alerted his unit and he was advised to file
for an extension due to the need for him to complete the mission with the
team.  He requested his return to the States due to his MRD.  As a result
of his [constant] requests, a release order was issued on 5 January 2004.

12.  The applicant further stated that he could not leave the theater when
it was convenient for him.  The delay of his separation orders and the
logistical procedures to leave the theater in Baghdad to Kuwait and from
Kuwait (7 days)
to Fort Bragg where it took 11 days for the deployment process were beyond
his control.  He then took leave and separated on 16 March 2004.  He served
on active duty for 1 year and 10 days, most of that time in combat in a
hostile and dangerous environment.

13.  Title 10, U. S. Code, section 14509 states that each reserve officer
in a grade below brigadier general who has not been recommended for
promotion to the grade of brigadier general shall, on the last day of the
month in which that officer becomes 60 years of age, be separated in
accordance with section 14515 of this title.

14.  Title 10, U. S. Code, section 14515 states that each reserve officer
who is in an active status and who reaches the maximum age specified in
section 14509 of this title shall be transferred to the Retired Reserve, if
the officer is qualified and applies for such transfer, or discharged.

15.  Title 10, U. S. Code, section 14703, provides that the Secretary of
the Army may, with the officer’s consent, retain in an active status any
reserve officer assigned to the Veterinary Corps.  Such officer may not be
retained in an active status under this section later than the date on
which the officer becomes           67 years of age.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant knew his MRD was 1 February 2004
 and that he applied for retired pay in January 2002 with a retirement date
of        1 February 2004.

2.  However, the applicant applied for retired pay a year before the war in
Iraq started and before his services were required in that theater of
operations.  While there is no available evidence to show he had to take so
much transition leave after returning to the States for outprocessing, the
fact is Army officials granted him that leave.

3.  It is also acknowledged that the applicant's specialty was overstrength
and a request for an MRD extension most likely would not have been
approved.  Nevertheless, he served on active duty until 16 March 2004.
Therefore, it would be equitable to show that a request for an MRD
extension was approved for a period of 2 months and, since retirements are
normally effective the first day of the month, that he was placed on the
retired list 1 April 2004.

BOARD VOTE:

___mdm__  ___lds__  ___lgh__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

     a.  voiding his retirement orders dated 28 November 2003;

     b.  showing that he received a 2-month extension to his mandatory
release date and that he was released from active duty on 16 March 2004 and
transferred back to his unit; and

     c.  issuing new orders showing that he was placed on the retired list
1 April 2004.




            __Mark D. Manning_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004104590                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041109                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |135.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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