RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20070009174 


	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.









      The following members, a quorum, were present:













	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 her record be corrected to show she has completed 20 qualifying years of service for non-regular retirement purposes.  

2.  The applicant states, in effect, she was erroneously discharged prior to completing 20 years of qualifying service in 2002, as a result of a miscalculation of her qualifying years of service.  She claims that based on her completion of more than 18 years of qualifying service at the time of her removal based on twice being non-selected for promotion to lieutenant colonel (LTC), she should have been granted an exception and allowed to continue serving until she obtained 20 years of qualifying service.  She states that if she had been properly processed, the Army would have identified that she had more than 18 years of service and she would have been retained to complete the 20 years of qualifying service necessary to qualify for retirement and would have been transferred to the Retired Reserve instead of being discharged.  She also requests to be credited with 20 years of qualifying service and to be issued a Notification of Eligibility for Retirement (20-Year Letter), which will entitle her to receive retired pay at age 60. 

3.  The applicant provides the following documents in support of her application: Separation Documents (DD Forms 214); Army Review Boards Agency (ARBA) Letter, dated 24 July 2006; United States Army Human Resources Command, 
St. Louis, Missouri, Memorandum, dated 21 February 2006; ABCMR Letter, dated 12 October 2006; ARBA Letter, dated 25 April 2007; and Congressional Inquiry Packet.  

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that served in the United States Army Reserve (USAR) in an enlisted status from 27 August 1979 through 14 May 1982.

3.  On 15 May 1982, the applicant was commissioned a second lieutenant in the USAR.  She was promoted to first lieutenant on 19 December 1983, to captain on 1 February 1986, and to major (MAJ) on 14 May 1994.  

4.  On 8 March 2001, a United States Army Total Personnel Command, St. Louis, Missouri (PERSCOM-St. Louis) Memorandum notified the applicant that she has been considered for promotion to MAJ by a Reserve Component Selection Board (RCSB), but was unfortunately not selected.  

5.  On 28 February 2002, a PERSCOM-St. Louis Memorandum informed the applicant that she had again been considered for promotion to MAJ by a RCSB, and again had not been selected.  

6.  On 1 September 2002, the applicant was honorably discharged from the USAR.  A Chronological Statement of Retirement Points (ARPC Form 249-2-E) on file in her Official Military Personnel File (OMPF) shows that she has compiled 3348 creditable retirement points, and completed 18 years and 9 months of qualifying service for retirement.  It also shows that during the Retirement Years Ending (RYE) on 20 December 1998, she accrued 44 retirement points, 6 below the minimum 50 points required for a qualifying year; and that during the RYE on 20 December 1995, she accrued 41 retirement points, 9 below the minimum standard.  It also shows that during the RYE on 20 December 1994, she accrued 73 retirement points, 23 more the minimum 50 required for a qualifying year.  

7.  On 5 October 2006, the Board considered the applicant's request that she be credited with service performed in the USAR Reserve Officer Training Corps (ROTC) Simultaneous Membership Program (SMP).  The Board recommended the applicant be credited with 2 years, 7 months, and 22 days of service she performed in the USAR ROTC SMP.  The Board indicated that it was not within its purview to address the erroneous discharge issue raised in an advisory opinion obtained from the United States Army Human Resources Command, 
St. Louis, Missouri (HRC-St. Louis) that had been obtained during the processing of that case because it was not a correction matter that flowed from the applicant's request. 


8.  The HRC-St. Louis advisory opinion provided during the 2006 review of the applicant's case by the Board indicated that the applicant was in an active status and earned retirement points during the period she was in the ROTC SMP between 27 August 1979 and 14 May 1982, and that her record should be reviewed to determine if she was involuntarily discharged due to twice being not selected for promotion, which would appear to have been erroneous.  

9.  Army Regulation 135-180 (Qualifying Service For Retired Pay Non-Regular Service) prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, United States Code, Chapter 67, sections 1331 to 1337.  This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have attained age 60 and completed a minimum of 20 years of qualifying service and that subsequent to 1 July 1949, qualifying service is granted only for each year of service an individual earns 50 or more retirement points.

10.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) 
prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 7 provides guidance and rules on removal from active status.  Removal rule 4 provides guidance on removal based on non-selection for promotion to Chief Warrant Officer Three, Chief Warrant Officer Four, Captain, Major, and Lieutenant Colonel.  Section II of chapter 7 provides guidance on exceptions to removal rules and lists the authorized exceptions to removal from an active status and describes processing procedures.  Exception number 2 provides that officers having 18 or 19 years of qualifying Federal service for retired pay will not be removed without their consent, and that officers who meet this criteria on the date removal is required will be retained to complete 20 years.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that based on her completion of over 
18 years of qualifying service, the applicant should have been granted an exception to her two time non-selection removal and been allowed to continue serving in an active Reserve status until she attained 20 years of qualifying service.  As a result, it would be appropriate to provide equity relief in this case.


2.  The applicant's Chronological Statement of Retirement Points (ARPC Form 249-2-E) shows that during the 24 year period she served in the USAR, she was only credited with 18 years and 9 months of qualifying service for retirement. However, it does show she earned a total of 1348 retirement points during this period, which well exceeds the 1200 point total she would have received had she earned only the 50 points required in each of these years.  

3.  The record also shows that in many of the 18 years and 9 months of qualifying years with which she was credited, the applicant earned more than the 50 points required to establish a qualifying year for retirement purposes.  

4.  However, in the RYE on 20 December 1998, the applicant earned 
44 retirement points, which was 6 points shy of the 50 needed for a qualifying year; and in the RYE on 20 December 1995, she earned 41 retirement points, 
9 shy of the 50 needed for a qualifying year.  Conversely, in the RYE on 
20 December 1994, she earned 73 retirement points, which was 23 more than the minimum 50 points required for a qualifying year.  

5.  In view of the facts of this case, and given the applicant's erroneous discharge and overall 24 year record of military service, it is appropriate and would serve the interest of equity and justice to redistribute 15 of the 73 points the applicant earned during the RYE on 20 December 1994, as follows:  6 points to the RYE on 20 December 1998 and 9 points to the RYE on 20 December 1995.  This would result in her being credited with 58 points in the RYE on 20 December 1994; 50 points in the RYE on 20 December 1998; and 50 points in the RYE 
on  20 December 1995.  This redistribution would give her the 50 minimum points in each of the RYEs on 20 December 1998 and 20 December 1995, which would provide her the two additional qualifying years for retirement purposes she needs to qualify for non-regular retired pay at age 60 on 8 February 2019.   

BOARD VOTE:

___x_  __x__  __x_  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 her 1 September 2002 discharge from the USAR and showing that she was instead transferred to the Retired Reserve on that same date;
      
      b.  redistributing 15 of the 73 retirement points she earned during the RYE on 20 December 1994, 6 points to the RYE on 20 December 1998 and 9 points to the RYE on 20 December 1995, thereby giving her the necessary 
2 additional years of qualifying service necessary for her to qualify for non-regular retirement at age 60; and 
      
      c.  issuing her a Notification of Eligibility for Retired Pay at Age 60 Letter (Twenty-Year Letter) showing that he is eligible to receive non-regular retired pay upon reaching age 60 on 8 February 2019.  




      _____x          ______
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070009174



6


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508