RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 September 2007
	DOCKET NUMBER:  AR20070003647 


	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. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Ronald D. Gant

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, correction of her mandatory release date (MRD) from 28 February 2007 to 30 November 2020.

2.  The applicant states, in effect, that the MRD of 28 February 2007 and her age (i.e., 60) are being used as a pretense to remove her from the U.S. Army Reserve.  The applicant also states, in effect, that her Officer Evaluation Reports (OER) were not seen by the promotion board which resulted in her non-selection.

     a.  The applicant states, in effect, that the U.S. Army recruited her in 1992 based on her special qualifications as a clinical microbiologist at a time of immediate need and, what has turned out to be, a continuing need for both military biological warfare and pandemic needs.  Her application included a waiver for her age and she was granted 7 years of constructive credit based on her civilian education.

     b.  The applicant states, in effect, as a result of a number of administrative shortcomings and lack of consideration for her service and status as an Army Medical Department (AMEDD) Individual Mobilization Augmentee (IMA), she finds herself in grave danger of separation without benefits or gratitude.

     c.  The applicant adds, in effect, that an official of the U.S. Army Human Resources Command (USA HRC), St. Louis, Missouri, informed her that her MRD was 30 November 2020.  However, another official of the USA HRC intimidated her, acted inappropriately and unprofessionally, informed her that the date of her discharge from the USAR was 28 February 2007, and advised her that she could bring her case to the attention of her congressman and senators.  The applicant also states that her raters tried to intervene on her behalf, but were told that her discharge date of 28 February 2007 was final.  The applicant asks for justice in the form of correction of her MRD to 20 November 2020.

3.  The applicant indicates she attached a copy of an electronic mail (email) message from the Chief of Notifications, Officer of Promotion to her application; however, there was no email message attached to the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records contain a copy of a DA Form 61 (Application for Appointment), dated 1 September 1992, and Computation Sheet. These documents show, in pertinent part, that the applicant’s date of birth is
11 February 1947, she was 45 years of age at the time of acceptance, and that she would attain age 60 on 11 February 2007.  The line entry for MRD is blank.

2.  The applicant's military service records contain a copy of Headquarters,
U.S. Total Army Personnel Command, TAPC-OPP-A, St. Louis, Missouri, memorandum, dated 1 December 1992, subject: Appointment as a Reserve Commissioned Officer of the Army Under Title 10, USC 591 and 593.  This document shows that the applicant was appointed a Reserve commissioned officer of the Army, in the grade of captain in the Medical Service Corps, effective upon her acceptance.  This document also shows that the applicant’s request for age waiver was approved and that she was credited with 7 years of service in an active status.  This document further shows that this (credited) service is not valid for pay entry basic date and it is not the result of prior military service.

3.  The applicant's military service records contain a copy of a DA Form 71 (Oath of Office – Military Personnel), which shows the applicant accepted appointment as a Reserve commissioned officer, effective 1 December 1992.

4.  The applicant's military service records contain a copy of Headquarters,
U.S. Total Army Personnel Command, TAPC-MSL-N, St. Louis, Missouri, memorandum, dated 20 January 2000, subject: Promotion as a Reserve Commissioned Officer of the Army (AR 135-155).  This document shows, in pertinent part, that the applicant was promoted to the rank of major/pay grade
O-4, effective 30 November 1999.

5.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Human Resources Command (USA HRC), AHRC-MSL-N, St. Louis, Missouri, memorandum, dated 30 August 2005, subject: Notification of Promotion Status.  This document shows, in pertinent part, that the applicant was notified she was considered by a Department of the Army Reserve Components Selection Board that convened on 10 May 2005 to consider officers of her grade for promotion, but she was not among those selected for promotion by the board.

6.  The applicant's military service records contain a copy of Headquarters,
USA HRC, AHRC-MSL-N, St. Louis, Missouri, memorandum, dated 3 August 2006, subject: Notification of Promotion Status.  This document shows, in pertinent part, that the applicant was notified she was considered by a Department of the Army Reserve Components Selection Board that convened on 2 May 2006 to consider officers of her grade for promotion, but she was not among those selected for promotion by the board.


7.  The applicant's military service records contain a copy of Headquarters,
USA HRC, AHRC-PAPT2-04, St. Louis, Missouri, Orders D-02-702861, dated
6 February 2007.  These orders show, in pertinent part, that the applicant was honorably discharged from the USAR, effective 28 February 2007, and that the authority was Army Regulation 135-175.

8.  In connection with the processing of this case, an advisory opinion was obtained from the Transition and Separations Branch, USA HRC, St. Louis, Missouri.  The Human Resource Specialist confirmed that the applicant had received a second non-selection for promotion by a Department of the Army promotion board and Selective Continuation was granted under the provisions of Title 10, United States Code, section 14701 (10 USC 14701), until 28 February 2007.  This official also confirmed that the applicant requested retention under
10 USC 14703 as an AMEDD officer, but was ineligible because she had received a second non-selection for promotion.  Nonetheless, the applicant was considered for this retention because the retention board was unaware of the applicant’s second non-selection for promotion.  As a result, the retention board decided that the applicant had a high density Area of Concentration (AOC) that was over strength at 185 percent and, because of this, her request for retention did not merit favorable consideration.  The USA HRC advisory official concludes by stating that the applicant was, therefore, properly removed from active status based upon attainment of maximum age (i.e., 60) and honorably discharged on 28 February 2007.  

9.  On 24 July 2007, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond.  On 19 August 2007, the applicant provided a response stating that the advisory opinion was based primarily on her second non-selection for promotion.  However, the applicant states that there were administrative issues concerning her Officer Evaluation Reports (which she provides as enclosures to her letter) that caused the OERs not to be considered in the promotion board decision-making process.  She states that her raters (for her OERs in 2004 and 2005) were surprised and appalled when they learned she was not promoted and both believe that she should have been promoted.  The applicant adds, in effect, that the OERs were not reviewed by the promotion board, the selection process was flawed, and the non-selection was not the result of her performance, but due to procedural error.  The applicant also states, in effect, that the Joint Chiefs of Staff granted her a waiver of the age requirement when she was appointed a commissioned officer.  In addition, as a AMEDD officer in good standing, she requested an extension to age 67 or the maximum years of commissioned service; however, her request was disregarded.  The applicant presents her professional qualifications and achievements as matters in support of her request.  She disputes the advisory official’s contention that her area of concentration is over strength and states that she is willing to serve on active duty based on the needs of the Army.  She concludes by stating in effect, that her past military service, demonstrated performance, and potential for further service in her professional field merit favorable consideration of her request.

10.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Branches), paragraph 1-5, provides general eligibility criteria and, in pertinent part, the maximum age in grade limits for AMEDD branch officers.  The maximum age limit for appointment in the grade of captain is 43.  This document also shows that applicants must not have reached the birthday of the maximum age limit prior to appointment in that grade.

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 3-4 (Notice of Consideration), provides, in pertinent part, that the Chief, National Guard Bureau, and the Chief, Office of Promotions, Reserve Component (RC), USA HRC, or their respective designees, will notify each ARNG of the United States (ARNGUS) and USAR officer in the zone of consideration for mandatory selection board consideration.  This notice will be dispatched at least 90 days before the convening date of the board, and will include the date on which the board is to convene and the name and date of rank of both the junior officer and senior officer in the primary zone as of the date of the notice.  In addition, officers will be directed to review their records and submit copies of missing documents or other corrections to the Adjutant General for ARNGUS officers, or the Commander, USA HRC, Office of Promotions (RC) for USAR officers.

12.  Army Regulation 135-155, Chapter 4 (Processing Selection Board Recommendations), Section V (Nonselection for Promotion), paragraph 4-33 (Actions resulting from nonselection), in pertinent part, provides that a major on the Reserve Active-Status List (RASL) who has failed of selection for promotion to lieutenant colonel for the second time and whose name is not on a list of officers recommended for promotion to lieutenant colonel, will be separated, unless the officer has a remaining service obligation or can be credited with 18 or more but less than 20 years of qualifying service for retired pay.  Separation will be on the later of the first day of the month after the month in which the officer completes 20 years of commissioned service, or the first day of the seventh month after the approval date of the promotion board report that nonselected the officer for the second time.

13.  Army Regulation 135-175 (Army National Guard and Army Reserve - Separation of Officers), paragraph 4-4 (Removal from an active status), states that members of the Army Reserve will be removed from an active status for any of the reasons outlined in this paragraph, with or without the officer's consent regardless of the length of commissioned service.  Subparagraph 4a(2) of this document states, in pertinent part, “Maximum Age.  Attaining maximum allowable age, as prescribed in Army Regulation 140-10.”

14.  Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers), paragraph 7-3 (Maximum age), provides exceptions to removal of AMEDD branch officers for maximum age and states that Soldiers not sooner removed for another reason will be removed when they reach maximum age.  This paragraph also provides, in pertinent part, that the removal date for field and company grade officers will be the last day of the month in which they reach age 60.  Paragraph 7-12.1 (Retention in an active status after failure to be selected for promotion) of this Army Regulation also provides, in pertinent part, that an officer (i.e., in the rank of major) whose removal from active Reserve status is required by law for twice failing to be selected for promotion must be removed within the prescribed time limits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that her MRD should be changed to
30 November 2020 because her age was used as a pretense to discharge her from the USAR.  She also contends, in effect, that her Officer Evaluation Reports were not reviewed by the promotion board, the selection process was flawed, and her non-selection was due to procedural error.  However, the applicant provides insufficient evidence in support of her claim.

2.  The evidence of record shows that at the time of her application for appointment the applicant was 45 years of age.  As a result, the applicant required a waiver (based on age) for appointment as a commissioned officer in the Army, which she requested and that was subsequently approved.  The evidence of record also shows that the applicant accepted an appointment as a Reserve commissioned officer on 1 December 1992.

3.  The evidence or record shows that officers in the zone of consideration for promotion have a responsibility to review their records and submit copies of missing documents or other corrections to the appropriate authority.  The applicant claims certain OERs were not considered by the promotion board(s) that considered her for selection to the next higher grade.  However, the applicant provides no documentary evidence to show that she reviewed her records and submitted the missing documents (i.e., OERs) for review by the Department of the Army Reserve Components Selection Boards that convened in May 2005 and May 2006.  In this regard, the applicant fails to provide creditable evidence that the OERs were missing from her records and not reviewed by the promotion board(s).  Thus, the applicant fails to provide sufficient evidence to support a claim of material error that would support promotion reconsideration.

4.  The evidence of record shows that the applicant was twice notified of her nonselection for promotion to lieutenant colonel, in 2005 and 2006.  The evidence of record also shows, in pertinent part, that an officer who has failed selection for promotion to lieutenant colonel for the second time and whose name is not on a list of officers recommended for promotion to lieutenant colonel will be separated on the first day of the seventh month after the approval date of the promotion board report that nonselected the officer for the second time.

5.  The evidence of record shows that the applicant attained the maximum allowable age (i.e., 60) on 11 February 2007.  The evidence or record also shows that Selective Continuation was granted the applicant until 28 February 2007.
The evidence of record further shows that members of the Army Reserve will be removed from an active status, with or without the officer's consent regardless of the length of commissioned service, upon attaining the maximum allowable age, as prescribed in Army Regulation 140-10.

6.  The evidence of record shows that the applicant was honorably discharged on 28 February 2007, the last day of the month in which she attained the maximum allowable age.  The evidence of record also shows the applicant’s separation was administratively correct and in compliance with applicable regulations.  Therefore, she is not entitled to correction of her records.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JEV___  ___RDG _  ___RCH_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




_____James E. Vick_____
          CHAIRPERSON


INDEX

CASE ID
AR20070003647
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/09/19
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20070228
DISCHARGE AUTHORITY
AR 135-175
DISCHARGE REASON
MRD Age
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
100.0200.0000
2.

3.

4.

5.

6.