RECORD OF PROCEEDINGS


	IN THE CASE OF:	  
	

	BOARD DATE:	  28 August 2007
	DOCKET NUMBER:  AR20060013121 


	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.


Ms. Catherine C. Mitrano

Director

Mr. G. E. Vandenberg

Analyst


The following members, a quorum, were present:


Mr. Paul M. Smith

Chairperson

Mr. Rodney E. Barber

Member

Mr. Rowland C. Heflin

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, her type of separation be changed from voluntary relief from active duty to retirement based on longevity. 

2.  The applicant states, in effect, she requested separation rather than discharge because she believed she did not have the necessary time in service for retirement.  A week before she was due to be separated she found out that she did have over 20 years of service and attempted to get her separation converted to retirement.  She was told that it could take up to six months to change the paperwork.  Since she had already signed an employment contract she was unable to remain on active duty to accomplish the necessary actions.

3.  The applicant provides copies of her discharge orders, one page of a DA Form 4037 (Officer Record Brief), and a DD Form 214 (Certificate of Release or Discharge from Active Duty).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be allowed to retire without having to reenter active duty.

2.  Counsel states, in effect, it is neither practical nor cost effective to have the applicant return to active duty solely for the purpose of submitting her paperwork to retire, especially in light of her medical problems.  Her reasons for requesting separation was motivated by her medical problems for which she now receives a 90 percent disability evaluation from the Department of Veterans Affairs (VA).   

3.  Counsel notes the applicant's records had not properly reflected all of her periods of service at the time she made her resignation election.  This led to her not being able to make the best decision related to her continuation on active duty.  Regrettably it was not until she had already signed an employment contract that she learned she had exceeded the qualifying years for retirement.

4.  Counsel provides a copy of a 2006 VA disability decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant first enlisted in the Army National Guard (ARNG) on 20 December 1980.  She served as an ARNG enlisted Soldier on active duty from 16 January 1982 through 27 September 1984 (2 years, 8 months and
12 days).  
2.  On 2 January 1985, she enlisted in the Regular Army and served on active duty until 30 May 1991 (6 years, 4 months, and 29 days).

3.  On 31 May 1991 she entered the United States Army Reserve (USAR) and served in an inactive status while participating in the Reserve Officer Training Corps (ROTC) program.  

4.  The applicant accepted a commission as a Radiologist in the Medical Corps on 10 June 1995 and served on continuous active duty until her separation on 24 July 2006.

5.  Her record contains no derogatory comments.  On her last two Officer Evaluation Reports (OER), both her rater and senior rater marked her in the first block (Outstanding Performance, Must Promote) and (Best Qualified), respectively.

6.  Headquarters, 24th Infantry Division and Fort Riley Orders 167-0001, dated 16 June 2006, discharged the applicant from the Regular Army effective 24 June 2006.  The orders state she had "completed 8 years of active duty: 20030610."

7.  The DD Form 214, issued on 24 July 2006 indicates the following:

a.  the applicant entered active duty for this period on 10 June 1995 and was separated with 11 years, 1 month, and 15 days of active service this period on 24 June 2006;

b.  she had 9 years, 1 month, and 11 days of prior active service with 5 years, 4 months, and 9 day of inactive service; and

c.  she was honorably discharged under the provisions of Army Regulation 600-8-24, paragraph 3-5 with a separation code of FND (unqualified resignation) and a narrative reason of "miscellaneous / general reasons."

8.  An automated Service Computation for Separation Worksheet, dated 6 June 2007, indicates the applicant has 20 years, 2 months and 26 days of active service; 1 year and 4 months of inactive enlisted service; and 4 years and 9 days of inactive USAR commissioned officer service for a total of 25 years, 7 months, and 5 days of service for basic pay purposes. 



9.  The available Officer Record Brief, which is dated 4 October 2006, shows the following:

	a.  a basic active service date (BASD) of 7 January 1988;

	b.  promotion to major on 10 June 2001;

	d.  active Federal commissioned service (AFCS), 135/21 months/days (11 years, 3 months, and 21 days); and

e.  active Federal service for pay, 225 months (18 years and 9 months);

10.  The record contains no derogatory information or any specific indication as to why the applicant submitted an unqualified resignation.

11.  In the development of this case an advisory opinion was obtained from the Chief, Retirements and Separations Branch, Human Recourses Command, Alexandria, Virginia.  The applicant's active duty periods of service were verified as 20 years, 2 months, and 26 days.  The opinion notes that the Retirements Branch does not have the authority to retroactively change the applicant's reason for separation and award her retirement benefits.  It was opined that the applicant's only options are to reenter active duty and request retirement or to seek relief through legal means which should be denied due to the voluntary nature of her separation. 

12.  An Automated Service Computation for Separation Worksheet, dated 6 June 2007, was completed and incorporated in the Advisory Opinion.  This form shows the applicant has 20 years, 2 months, and 26 days of active service with 25 years, 7 months, and 5 days of total service for pay purposes.

13.  A copy of the opinion was referred to the applicant and she deferred comments to her counsel.  Counsel submitted a statement, as denoted above, indicating that the position offered in the opinion is unduly harsh and unfairly calls into question the applicant's motives for seeking separation.  Counsel states that the reason for the applicant's requested separation was due to medical problems. Counsel notes that at the time she found out that she had qualifying service for retirement she had already entered into a private employment contract which she could not break unless she wished to face a potential breach of contract lawsuit.



14.  An 11 March 2007 VA disability rating decision granted the applicant a combined 90 percent disability evaluation, effective the date of her separation, for obstructive sleep apnea, urinary incontinence, tachycardia, status post-fracture of the fibula with degenerative arthritis of the right ankle, degenerative joint disease and degenerative disc disease at C4-5 and C5-6 with radiculopathy of the right arm, hypertension, status post fracture of the third metatarsal with degenerative arthritis, and gastroesophigeal reflux disease.

15.  Army Regulation 600-8-24 (Officer Transfers and Discharges) sets forth the policies and procedures for officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more.  In pertinent part the following paragraphs apply to this case:

	a.  Paragraph 2-5 states that after meeting their period of obligated service, an officer may request release from active duty (REFRAD) whenever such action is considered appropriate.  Unless specified otherwise in this paragraph, application for REFRAD will be submitted not earlier than 12 months or no later than 6 months before the desired release date or beginning date of transition leave, whichever is the earliest;  

	b.  Paragraph 2-21d, states an officer's separation will not be delayed past the schedule release date due to nonsubmission or late submission of a voluntary retirement request; and 

	c.  Paragraph 6-19b states a request for retirement will be prepared and forwarded to the appropriate approval authority not earlier than 12 months before the retirement date or no later than 9 months before the requested retirement date or beginning date of transition leave, whichever is the earliest.

	16.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention and separation, including retirement.  Chapter 2 sets forth the various medical conditions and physical defects which may render a Soldier unfit for entrance onto active duty and includes sleep apnea as a disqualifying condition.  Chapter 3 sets forth the various medical conditions and physical defects which may render a Soldier unfit for further military service and includes sleep apnea as a disqualifying condition.  





DISCUSSION AND CONCLUSIONS:

1.  While it is the responsibility of every Soldier to insure that their records are correct, it is also the responsibility of the Army to ensure that the records are properly maintained, that the information in them is correct, and that they are complete and updated in a timely manner.  

2.  The fact that this was not done in the applicant's case is supported by the fact that the information listed on the Officer Record Brief does not match the information listed on the DD Form 214 or the Service Computation worksheet.

3.  According to the applicant, when she requested resignation, her records led her to believe that she did not have sufficient active service for retirement when in fact she would have had almost 20 years of active service at that point.  

4.  This contention is supported by the fact that her retirement orders state that she had completed 8 years of active service as of 10 June 2003.  This reported period of service reflects only her service as a commissioned officer.  There is no indication of her period of active enlisted service denoted in the orders.

5.  The applicant contends that she was told that she would most likely have to remain on active duty for an additional 6 months in order to convert her request for a voluntary resignation to retirement.

6.  While regulations state that a request for retirement should be submitted not earlier than 12 months or no later than 9 months before the requested retirement date, the regulation also indicates that an officer's separation is not be delayed past a scheduled release date due to nonsubmission or late submission of a voluntary retirement request.

7.  The applicant has completed the required minimum number of years of active Federal service to be entitled to retire as of the date of her released from active duty.  To suggest that this officer return to active duty for the sole purpose of requesting retirement is ludicrous, especially in light of the fact that her current medical conditions would preclude her from returning to active duty.

8.  Therefore, as a matter of equity, the records should be corrected to show that the applicant was honorable released from active duty on 24 July 2006 and placed on the Retired List with entitlement to retroactive pay and benefits.



BOARD VOTE:

_PMS___  __REB__  ___RCH _  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 showing that the applicant was honorably released from active duty on 24 July 2006 and placed on the Retired List with entitlement to retroactive pay and benefits.




____        Paul M. Smith__________
              CHAIRPERSON


INDEX

CASE ID
AR20060013121
SUFFIX

RECON
 
DATE BOARDED
20070828  
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . . . .  
DISCHARGE REASON

BOARD DECISION
 GRANT 
REVIEW AUTHORITY

ISSUES         1.
136
2.

3.

4.

5.

6.