RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 August 2006
      DOCKET NUMBER:  AR20060002076


      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. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 she be determined to be eligible for a
Reserve retirement.

2.  The applicant states she was unjustly denied the sufficient military
service to qualify for a military retirement.  Upon returning from the
Persian Gulf War in 1991, her unit was reconfigured and later deactivated.
She was informed she would be reassigned to a unit in Illinois, requiring
her to fly one weekend per month in order to attend unit training
assemblies.  No other alternatives except the Individual Ready Reserve
(IRR) were offered to her, so she chose to transfer to the IRR.  She
continued to accrue 50 points per year, but she was informed in 1998, upon
reaching 68 years of age, that she would be honorably discharged.  At that
time, she lacked 9 months and 19 days of completing 20 years of qualifying
service for a Reserve retirement.  She asked for the necessary time to
complete her 20 years but was told there were no extensions for continued
service beyond age 68.

3.  The applicant states that the military regulations are full of
conditions where a member who has over 18 years of service is allowed to
continue in service until the member completes 20 years of qualifying
service.  The temporary special retirement authority (TERA) allows for
members to be transferred to the Retired Reserve providing they have over
15, but less than 20, years of qualifying service.

4.  The applicant provides her discharge orders, dated 14 January 1998; a
statement of retirement points; a 10 June 1998 letter from the U. S. Army
Reserve Personnel Command (AR-PERSCOM); a 29 October 2004 letter from the
U. S. Army Human Resources Command – St Louis (USAHRC - STL, formerly AR-
PERSCOM); a 10 June 1998 letter from USAHRC – STL; an email dated 6 March
2003; her appointment orders; her oath of office; a promotion memorandum
dated 4 October 1985; her DA Form 2-1 (Personnel Qualification Record);
Officer Evaluation Reports for the periods ending 30 June 1980,
9 January 1981, 9 January 1982, 9 January 1983, 9 January 1984, 31 August
1984, 31 August 1985, 31 August 1987, 31 August 1988, 31 August 1989,
 31 August 1990, 6 May 1991, and 17 November 1991; release from active duty
orders dated 22 April 1991; a DD Form 214 (Certificate of Release or
Discharge from Active Duty) for the period ending 6 May 1991; a DD Form 215
(Correction to DD Form 214); and orders dated 13 December 1991 transferring
her to the IRR.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 March 1998.  The application submitted in this case is dated
23 January 2006.

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 limitations 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 was born on 19 March 1930.  On 20 January 1979, she
accepted appointment in the U. S. Army Reserve (USAR), Army Nurse Corps, in
the rank of Major.  At that time, a Computation Sheet Basic Date (mandatory
removal from active status under ROPA for max authorized years of service)
was prepared to determine her mandatory removal date.  Note 1 of this sheet
stated “If commissioned officer attains age 60 prior to above Mandatory
Removal Date, officer must be removed for Maximum age.  An adjusted MRD
will be made showing date age 60 is attained.”  This document was filed in
her Official Military Personnel File.

4.  On 16 November 1985, the applicant was promoted to Lieutenant Colonel
in the USAR, Army Nurse Corps.  The applicant received several extensions
of her MRD beyond age 60.  On 21 November 1990, she entered active duty in
support of Operation Desert Shield/Storm.  She was released from active
duty on 6 May 1991.  She was transferred to the IRR effective 18 November
1991.

5.  The applicant turned age 68 on 19 March 1998.  Effective 31 March 1998,
she was discharged from the USAR.  At that time, she had completed over 19
years of qualifying service for a Reserve retirement.

6.  Army Regulation 140-10 prescribes policies, responsibilities and
procedures to assign, remove or transfer USAR Soldiers.  In pertinent part,
it states that, normally, officers having 18 or 19 years of qualifying
Federal service for retired pay will not be removed without their consent;
however, this policy does not apply to officers transferred or discharged
for reaching the maximum age at
which transfer to the Retired Reserve or discharge is required by law.
USAR officers of the Army Medical Department (AMEDD) branch who were
previously retained to age 64 and who meet the applicability criteria may
apply for extension to age 68 (later changed to age 67), as appropriate.
If the officer will be unable to complete 20 qualify years of service for
retired pay by age 68 (or later, age 67), the request for retention will
include a statement of understanding acknowledging that the officer may be
removed before becoming eligible for retired pay.

7.  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 specified AMEDD branches.  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 (68 years of age at the time the
applicant was discharged).

8.  Title 10, U. S. Code, section 12731 provides that a Reserve component
member is entitled, upon application, to retired pay if the person is at
least        60 years of age and has performed at least 20 years of
qualifying service.

9.  Title 10, U.S. Code, section 12731a was the temporary special
retirement qualification authority.  It provided that, during the period
beginning 23 October 1992 through 30 September 1999 (later extended to 31
December 2001), a member of the Selected Reserve who had completed at least
15, and less than 20, years of qualifying service as of 1 October 1991
could, upon the request of the member, be transferred to the Retired
Reserve.  It was offered to any Selected Reserve member who lost his or her
paid drill position due to inactivation, relocation, or reorganization of
his or her unit during the drawdown period.  It did not include members
discharged or transferred because they no longer met qualifications for
membership.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been carefully considered.  However,
she was 48 years old when she was appointed in the USAR in 1979.  Note 1 of
her Computation Sheet Basic Date effectively warned her that, since her MRD
would be reached upon attaining age 60, she would be removed for maximum
age.  Even if she was not specifically informed of this requirement at the
time of her appointment, that document was filed in her Official Military
Personnel File for her review.

2.  It was only by virtue of her being an AMEDD officer that the applicant
was allowed to extend past age 60 several times, the last time to age 68.
Prior to her last extension, she should have signed a statement of
understanding acknowledging that she could be removed before becoming
eligible for retired pay.  Although that statement of understanding is not
available, there is still insufficient evidence to show she was not aware
that she most likely would be removed before becoming eligible for retired
pay.

3.  Normally, officers having 18 or 19 years of qualifying Federal service
for retired pay will not be removed without their consent.  However, this
policy does not apply to officers transferred or discharged for reaching
the maximum age at which transfer to the Retired Reserve or discharge is
required by law.  The law required the applicant be discharged upon
attaining age 68.

4.  The TERA was not established by law until 23 October 1992, almost a
year after the applicant was transferred to the IRR as a result of her unit
inactivating (at which time she had less than 15 years of qualifying
service).  Therefore, she was not eligible for a Reserve retirement under
the TERA.

5.  From the applicant’s statements, it appears that she would have
remained in a Reserve unit had she been offered the opportunity.  However,
that still would not have made her eligible for a Reserve retirement under
the TERA.  The TERA did not include members discharged or transferred
because they no longer met qualifications for membership, and she lost her
qualifications for membership upon turning age 68 in March 1998.  The TERA
was meant to be a drawdown tool to encourage Selected Reserve members to
volunteer to leave the Selected Reserve and was not meant for members who
were already scheduled to leave the Selected Reserve for other reasons.

6.  Again, because there is sufficient evidence to show that the applicant
knew at the time of her appointment that she most likely would not qualify
for a Reserve retirement, it does not appear to be inequitable to deny the
relief requested.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 March 1998; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on          30 March 2001.  The applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__clg___  __jbg___  __pmt___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  __Curtis L. Greenway__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002076                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060810                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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