RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 September 2006
      DOCKET NUMBER:  AR20050017349


      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             |
|     |Mr. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. David W. Tucker               |     |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, that she be credited with 20
qualifying years for retirement, or be allowed to complete 4 months and 8
days of service to achieve a 20-year retirement, and that she be promoted
and retired in the grade of rank of lieutenant colonel (LTC)/O-5.

2.  The applicant states, in effect, that she completed over 19 years of
service, but had less than 20 qualifying years of service at the time of
her disability discharge.  She also states, in effect, that on 4 February
2003 she was notified of her selection for promotion to LTC, but was not
promoted prior to her discharge and that this is unjust.

3.  The applicant provides a copy of a letter from the Chief, Office of
Promotions, Reserve Components, U.S. Army Personnel Command, St. Louis,
Missouri, dated 4 February 2003, subject:  Eligibility for Promotion as a
Reserve Commissioned Officer Not on Active Duty; "Corrected Copy" of Virgin
Islands National Guard (VIARNG), Joint Force Headquarters, Christiansted,
U.S. Virgin Islands (USVI), Orders 111-1, dated 10 December 2003; DD Form
214 (Certificate of Release or Discharge from Active Duty), with an
effective date of 15 December 2003; and National Guard Bureau (NGB) Form 22
(NGB Report of Separation and Record of Service), with an effective date of
15 December 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that she enlisted in the
Army National Guard (ARNG) on 24 June 1983.  Upon completion of basic
combat training and advanced individual training, the applicant was awarded
military occupational specialty (MOS) 95B (Military Police).  The applicant
then attended Officer Candidate School and, on 26 October 1984, was
appointed a second lieutenant in the Military Police Corps.  She
subsequently attended the Supply and Services Management Officer Course,
branch transferred into Quartermaster and continued to serve as a
commissioned officer in the ARNG.

2.  The applicant's military service records contain a copy of a letter
from the Chief, Office of Promotions, Reserve Components, U.S. Army
Personnel Command, St. Louis, Missouri, dated 4 February 2003, subject:
Eligibility for Promotion as a Reserve Commissioned Officer Not on Active
Duty.  This document shows, in pertinent part, that the applicant was
notified of her selection for promotion to the grade of rank of LTC with a
promotion eligibility date of
11 September 2003.  This document also shows that the effective date of the
promotion will be either of the following dates: (a) 11 September 2003; (b)
the date Federal recognition is extended in the higher grade; or (c) the
date following the date Federal recognition is terminated in current
Reserve grade.  This document further states that "[i]f officer accepts
promotion and Federal recognition is not extended in the next higher grade,
he/she will be transferred in his/her current grade to the U.S. Army
Reserve on the day following the date of termination of Federal
recognition."

3.  The applicant's military service records contain a copy of
Headquarters, VIARNG, Christiansted, Virgin Islands, Orders 1-1, dated 5
January 2000, which ordered the applicant to full-time National Guard Duty
for the period (active duty commitment) "17 March 2000 to Indefinite."  The
applicant's records also contain a copy of VIARNG Joint Force Headquarters,
Christiansted, USVI, Orders 107-2, dated 4 December 2003, which amended
Headquarters, VIARNG, Orders 1-1, dated 5 January 2000.  Theses orders show
that the applicant was serving in the grade of rank of major (MAJ)/O-4 and
that they amended the applicant's active duty commitment to read "17 March
2000 - 15 December 2003."

4.  The applicant's military service records contain a copy of VIARNG,
Joint Force Headquarters, Christiansted, USVI, Orders 107-1, dated 4
December 2003, as amended by VIARNG, Joint Force Headquarters, Orders 110-
1, dated
9 December 2003.  These orders show, in pertinent part, that the applicant
was reassigned, in the grade of rank of MAJ/O-4, to the U.S. Army
Transition Point, Fort McPherson, Georgia, for separation processing and
that she was authorized disability severance pay.

5.  The applicant's records contain a "Corrected Copy" of VIARNG, Joint
Force Headquarters, Christiansted, USVI, Orders 111-1, dated 10 December
2003, which shows, in pertinent part, that the applicant was discharged on
15 December 2003 in the grade of rank of MAJ/O-4.  These orders also show,
in pertinent part, that the applicant was authorized disability severance
pay in pay grade LTC/O-5 based on 9 years, 1 month, and 14 days of active
service as computed under Title 10 United States Code, section 1212 (10 USC
1212).  These orders also show the applicant's percentage of disability as
"0" (zero).

6.  The applicant's military service records contain a copy of a DD Form
214, with an effective date of 15 December 2003.  This document shows, in
pertinent part, that the applicant was discharged in the grade of rank of
MAJ/O-4, effective
15 December 2003.  This document also shows that the applicant was
honorably discharged under the provisions of Army Regulation 635-40
(Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-
24b(3), after completing a total of 9 years, 1 month, and 14 days active
service and that she received disability severance pay in the amount of
$118,141.20.
7.  The applicant's military service records contain a copy of a NGB Form
22, with an effective date of 15 December 2003, which shows, in pertinent
part, that at the time of the applicant's discharge she had completed a
total of 19 years,
5 months, and 22 days service for retired pay.

8.  The applicant's military service records contain a copy of
Headquarters, Departments of the Army and the Air Force, NGB, Washington,
DC, Extract of Special Orders Number 84 AR, dated 17 March 2005.  These
orders show, in pertinent part, that the applicant's Federal recognition
status was withdrawn upon her transfer to the USAR, effective 15 December
2003.  These orders also show, at that time, the applicant's grade of rank
was MAJ/O-4.

9.  In connection with the processing of this case, an advisory opinion was
obtained from the Director, National Guard Affairs Office, U.S. Army
Reserve Personnel Command, St. Louis, Missouri.  The NGB advisory official
provides a copy of the applicant's ARNG Retirement Points History
Statement, dated
1 December 2003.  This NGB official recommends the applicant be credited
with 5 retirement points for the year 24 June 1994 through 23 June 1995,
which would enable the applicant to have a cumulative total of 50 points
for that year, resulting in a good retirement year, and providing the
applicant a total of 20 good years for retirement.  The NGB advisory
official also offers information and circumstances related to the
applicant's pregnancy that contributed to her inability to perform drill
during the cited period, states that the applicant attended drill regularly
before and after these circumstances, and makes the recommendation based on
the applicant's overall record of service.  However, the NGB advisory
opinion is silent with respect to the applicant's request for promotion and
retirement in the grade of rank of LTC/O-5.

10.  The applicant was provided a copy of the NGB advisory opinion in order
to have the opportunity to respond.  On 22 July 2006, the applicant
provided her concurrence with the advisory opinion rendered by the NGB
official.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation), paragraph 4-24b, provides, in pertinent part, that based
upon the final decision of the U.S. Army Physical Disability Agency or Army
Physical Disability Agency Board, retirement orders or other disposition
instructions will be issued for separation for physical disability with
severance pay as provided under Title 10 United States Code (USC), section
1203 or 1206.

12.  Department of Defense Instruction (DoDI) Number 1332.38 (Physical
Disability Evaluation) implements policy, assigns responsibilities, and
prescribes procedures for retiring or separating Service members because of
physical disability.  Enclosure 3, Part 7 (Final Disposition), paragraph
E3.P7.5.3 (Separation with disability severance pay) provides, in pertinent
part, that separation is directed under 10 USC 1203 or 1206 when the member
is unfit for a compensable physical disability determined under the
standards of this DoDI, if the member has less than 20 years of service
computed under Title 10 USC, section 1208, and the disability is rated at
less than 30 percent, to include
0 percent.  This DoDI also states that there are no provisions under Title
10, United States Code, to repay disability severance pay for the purpose
of receiving retired pay.

13.  Title 10 USC, section 1212 (Disability severance pay) states that upon
separation from his armed force under section 1203 or 1206 of this title, a
member is entitled to disability severance pay computed by multiplying his
years of service, but not more than 12, computed under section 1208 of this
title, by, in pertinent part, twice the amount of monthly basic pay to
which he would be entitled if serving (1) on active duty on the date when
his name was placed on the temporary disability retired list or, if his
name was not carried on that list, on the date when he is separated, and
(2) in the permanent regular or reserve grade to which he would have been
promoted had it not been for the physical disability for which he is
separated and which was found to exist as a result of a physical
examination (emphasis added).

14.  Title 10 USC, section 1213 (Retirement or separation for physical
disability), provides that unless a person who has received disability
severance pay again becomes a member of an armed force, the National
Oceanic and Atmospheric Administration, or the Public Health Service, he is
not entitled to any payment from the armed force from which he was
separated for, or arising out of, his service before separation, under any
law administered by one of those services or for it by another of those
services.  However, this section does not prohibit the payment of money to
a person who has received disability severance pay, if the money was due
him on the date of his separation or if a claim by him is allowed under any
law.

15.  Title 10 USC, Chapter 1223 (Retired Pay for Non-Regular Service),
section 12731 (Age and service requirements), states that, except as
provided in subsection (c), a person is entitled, upon application, to
retired pay computed under section 12739 of this title, if the person (1)
is at least 60 years of age;
(2) has performed at least 20 years of service computed under section 12732
of this title; (3) performed the last six years of qualifying service while
a member of any category named in section 12732(a)(1) of this title, but
not while a member of a regular component, the Fleet Reserve, or the Fleet
Marine Corps Reserve, except that in the case of a person who completed the
service requirements of paragraph (2) before 5 October 1994, the number of
years of such qualifying service under this paragraph shall be eight; and
(4) is not entitled, under any other provision of law, to retired pay from
an armed force or retainer pay as a member of the Fleet Reserve or the
Fleet Marine Corps Reserve.

16.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-
Regular Service) implements statutory authorities governing the granting of
"retired pay" to Soldiers and former Reserve Component Soldiers.  Chapter 2
provides eligibility criteria and, in pertinent part, states that in order
to qualify for non-regular retirement, a member must have attained age 60,
completed a minimum of 20 years of qualifying service, and served the last
6 years of his or her qualifying service as a Reserve Component Soldier.
Paragraph 2-8 defines qualifying service and states, in pertinent part,
that a Reserve Component Soldier must earn a minimum of 50 retirement
points each retirement year to have that year credited as qualifying
service.

17.  Army Regulation 135-180, paragraph 2-1 (Eligibility) provides, in
pertinent part, that an applicant must (1) not be entitled to retired pay
from the Armed Forces under any other provision of law; and (2) not have
elected to receive disability severance pay in lieu of retired pay at age
60.  This paragraph also provides that Reserve personnel involuntarily
relieved from active service who are not eligible for retired pay at time
of release, but who are paid readjustment pay under the provisions of Title
10, USC, section 687, are eligible to receive retired pay under this
regulation provided they are otherwise qualified at a later date.

18.  Title 10 USC, section 1370(d) (Commissioned officers: general rule;
exceptions), provides rules for retirement in the highest grade held
satisfactorily and provides, in pertinent part, that in order to be
eligible for voluntary retirement under any provision of this title in a
grade above major, a reserve commissioned officer of the Army must have
served in an active status in that grade for not less than three years, or
in a retired status on active duty, for not less than three years, or if
transferred because of disability served in an active status at least six
months.

19.  Department of Defense (DoD) Financial Management Regulation (FMR),
Volume 7B (Military Pay Policy and Procedures - Retired Pay), Chapter 1
(Initial Entitlements - Retirements), section 0105 (Rank and Pay Grade),
paragraph 0105E (General Determinations - Reserve Officers) states, in
pertinent part, unless entitled to a higher grade under some other
provision of law, those Regular and Reserve members who retire other than
for disability, will retire in the Regular or Reserve grade they hold on
the date of retirement.  This document also provides, in pertinent part, to
receive credit for satisfactory service in a grade above MAJ/O-4, a person
must serve satisfactorily in that grade, as determined by the Secretary of
the Military Department concerned, as a Reserve commissioned officer in an
active status, or in a retired status on active duty, for at least 3 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that she should be credited with 20
qualifying years for retirement, or be allowed to complete 4 months and 8
days of service to achieve a 20-year retirement, and that she should be
promoted and retired in the grade of rank of LTC/O-5 because she completed
over 19 years of service at the time of her discharge and had been notified
of her selection for promotion to LTC.  The applicant provided documents
related to her notification of selection for promotion to LTC and her
disability discharge.  However, she provides insufficient documentary
evidence to support her claim that she should be credited with 20
qualifying years for retirement and retired in the grade of rank of LTC/O-
5.

2.  The evidence of records shows that the applicant completed her last 6
years of qualifying service as a member of the ARNG.  The evidence of
records also shows that, at the time of her discharge, the applicant only
completed a total of
19 qualifying years with the ARNG that are creditable service for retired
pay.  Therefore, the applicant is not entitled to retired pay under Title
10, United States Code, Chapter 67.

3.  The evidence of records shows that the applicant earned 45 points
toward retirement during her retirement year ending (RYE) 23 June 1995.
The Board notes that the applicant lacked 5 points this particular year in
order to achieve the minimum 50 points necessary for the year to be
credited as a qualifying year.  The Board also notes the circumstances
outlined by the NGB advisory official regarding the applicant during this
period and concurs with the recommendation of the NGB advisory official to
credit the applicant with 5 points for RYE 23 June 1995.  Therefore, in
view of the foregoing, it would be appropriate, as an exception to policy,
to administratively adjust retirement points the applicant earned during
qualifying year 24 June 1995 through 23 June 1996 and redistribute 5 of
these points to her previous RYE 23 June 1995, thereby establishing the
year 24 June 1994 to 23 June 1995 as an ARNG qualifying year for retired
pay.  Following the redistribution of her retirement points it would then
be appropriate to certify the applicant eligible for retired pay in the
rank of major/pay grade O-4, upon the applicant attaining her 60th
birthday.

4.  There is no evidence of records that shows the applicant was serving in
the grade of rank of LTC/O-5 at any time, beginning 11 September 2003
through the date of her discharge (i.e., 15 December 2003).  In addition,
the applicant's records are absent evidence that Federal recognition was
extended to the applicant promoting her to the next higher grade (i.e.,
LTC/O-5) during the aforementioned period.  Moreover, the evidence of
record shows withdrawal of the applicant's federally recognized status,
effective 15 December 2003, when she was transferred to the USAR in grade
of rank of MAJ/O-4.  Consequently, the evidence of records shows that the
highest grade the applicant held satisfactorily was MAJ/O-4.  Therefore, in
the absence of documentary evidence to the contrary, the applicant is not
entitled to promotion to the grade of rank of LTC/O-5.

5.  It is noted that absent the action taken by this Board, as an exception
to policy (i.e., to direct the administrative adjustment of the applicant's
retirement points), the applicant lacks the necessary number of qualifying
years of service for retired pay for non-regular service.  Nonetheless, the
evidence of records shows that members who retire other than for disability
(emphasis added), will retire in the Regular or Reserve grade they hold on
the date of retirement.  As previously noted, the evidence of records shows
that the highest grade the applicant held satisfactorily was MAJ/O-4.
Therefore, in view of all of the foregoing, the applicant is not entitled
to retired pay in the grade of rank of LTC/O-5.

6.  The applicant received disability severance pay in the amount of
$118,141.20 upon her discharge from active duty.  Under the provisions of
10 USC 1213, the applicant would not be entitled to retired pay at age 60.
However, in light of the recommendation by the National Guard Bureau to
correct the applicant's record to reflect 20 qualifying years, entitling
her to retirement pay at age 60, the Board recommends permitting the
applicant to retire provided the amount she received as disability
severance pay is recouped by the Defense Finance and Accounting Service
(DFAS).  In completing this review, the ABCMR contacted the applicant
concerning her desire for retirement pay in light of recoupment.  The
applicant stated her desire to receive retired pay and understands that the
disability severance pay will be deducted from her retired pay.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__WFC__  __JCR __  __DWT__  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 of partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected as follows:

      a.  Redistribute five (5) of the applicant's inactive duty points
(IDT), for retirement qualification credit only, from ARNG RYE 23 June 1996
and credit them to the applicant's previous ARNG RYE 23 June 1995, as shown
below:

                                         IDT Point Total Career Points/
      Beginning Date   Ending Date           Adjustment   Points for Ret.
Pay

      1995 06 24       1996 06 23       Debit:   5       113
      1994 06 24       1995 06 23       Credit:  5         50

      b.  As a result of the above administrative correction, the applicant
is certified eligible for retired pay in the rank of major/pay grade O-4,
upon the applicant attaining her 60th birthday.  Therefore, the Board
recommends the Defense Finance and Accounting Service (DFAS) perform an
audit of the applicant's pay records with respect to the disability retired
pay received and provide notice to the applicant of the amount to be
recouped from her retired pay once she becomes eligible to receive it.

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
promotion and retirement in the grade of rank of lieutenant colonel (LTC)/O-
5.




                                  ____William F. Crain______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017349                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060921                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20031215                                |
|DISCHARGE AUTHORITY     |AR 635-40, Paragraph 4-24b(3)           |
|DISCHARGE REASON        |Disability, Severance Pay               |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.0300.0000                           |
|2.                      |131.0100.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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