RECORD OF PROCEEDINGS


	IN THE CASE OF:	  

	BOARD DATE:	3 April 2008  
	DOCKET NUMBER:  AR20070016101 


	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

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms. LaVerne Douglas

Member

Mr. Jeffrey Redmann

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 extended past her mandatory removal date (MRD), of 28 February 2008, and that she be retained in the Reserve to qualify for retired pay and benefits. 

2.  The applicant states, in effect, that she was advised that she was being discharged on 29 February 2008, for MRD.  She will be 60 years of age.  She is currently serving in Iraq and her planned redeployment date is 20 March 2008.  She was advised by HRC (Army Human Resources Command) that she needed to leave the theater prior to this date, her MRD, or risk losing pay and benefits.  She has 17 1/2 good years in the military.  She is requesting that she be allowed to remain in the Army Reserve until she completes 20 years of qualifying service which would entitle her to retirement.

3.  She is asking for a correction of her date of rank (DOR) which would result in promotion and pay differential dating back to 1990.  She was given constructive service credit when she entered the Army Reserve for years of civilian service
as a registered nurse.  Prior to entry into the Army Reserve, she had been in continuous civilian practice as a nurse for nearly 18 years.  She was commissioned as a first lieutenant (1LT) but should have been commissioned as a CPT (captain) according to regulation.  Additionally, with an adjusted DOR she would have been eligible for promotion to MAJ (major) many years ago without the civilian education component as a factor.  

4.  She states the AMEDD (Army Medical Department) requires a Bachelor of Science (BS) in nursing for promotion which she does not possess.  However, that requirement went into effect in or around 1989.  Secondly, she is currently serving as a Civil Affairs Officer in Iraq (school trained) which the AMEDD apparently agreed to.  This was not a voluntary re-classification.  She would probably be eligible for promotion through Civil Affairs.

5.  She has long been under the impression that she could remain in an active Reserve status until age 62.  As a nurse in the AMEDD, the maximum age is 67. She has been told that because she was twice non-selected for promotion, this did not apply to her.  However, all the research she has done indicated that a selective continuation (SELCON) board would allow her to remain in an active status.  She listed several sections under Title 10, United States Code (USC), such as Subtitle E, Reserve Components, Part III—Promotion and Retention, Chapter 1409—Continuation of Officers, Section 14701—Selection of officers for continuation and Section 14703—Authority to retain chaplains and officers in medical specialties until a specified age.  She believes that she fell under these sections.  Additionally, as she was performing her research, she discovered the constructive service credit statue.  

6.  She states that she was commissioned as a first lieutenant (1LT) in 1990.  She was given 3 years of constructive service credit.  At the time of her commissioning, she had been in nursing practice for over 17 years.  The calculation per regulation, with her many years of civilian service, would have placed her as a captain which would have adjusted her DOR substantially.  This would have resulted in a pay increase and ability to be competitively promoted without the civilian education factor.

7.  The applicant provides several documents in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that she completed her AA (Associate of Arts) Degree in June 1972.

2.  The applicant's records show that she was appointed as a Reserve commissioned officer in the rank of first lieutenant on 26 May 1990, in the Army Nurse Corps (ANC), at the age of 42.  Her date of birth (DOB) is 28 February 1948 with an MRD of 28 February 2008, at the age of 60.  When she entered the Army Reserve, she was given 3 years constructive service credit.  Records also show she was granted an age and age in grade waivers when she was appointed.

3.  The applicant completed the AMEDD Basic Officers Course (OBC) on 8 February 1991.   

4.  The applicant was promoted to captain (CPT/O-3) effective 25 May 1994. 

5.  The applicant was not selected for promotion to major by the 2001 and 2002 Army Reserve Components Selection Boards (RCSB) based on her not having completed the required civilian and/or military education.  Those boards convened on 26 March 2001 and 7 January 2002, respectively. 

6.  On 24 September 2002, the Director, Personnel Actions and Services, Army Reserve Personnel Command (AR-PERSCOM), (known now as the HRC), informed the applicant that even though the RCSB did not select her for promotion, the SELCON board convened to consider her for continued service on the RASL (Reserve Active Status List), due to her twice non-selection by the RCSB.  Unless she specifically declined continuation, she would be continued until 22 August 2005.  Future RCSBs would consider her for promotion as long as she remained eligible for consideration.

7.  The applicant was not selected again for promotion to major by an RCSB, on 21 January 2004, under the 2004 criteria, based on her not having completed the required civilian and/or military education.  She was advised that as a result of her second nonselection [in fact her third nonselection], she was required to be discharged.

8.  The applicant was ordered to active duty on 4 November 2006 in support of Iraqi Freedom for a period of 542 days.

9.  On 31 December 2007, on an Army Staffing Forms, the applicant submitted a requested for retention beyond her MRD for SELCON and age to the Assistant Secretary of the Army (ASA), Manpower & Reserve Affairs (M&RA). 

10.  On 5 February 2008, the ASA, M&RA, informed the applicant that her request was disapproved under the provisions of Title 10, USC, Section 14509, 14515, and Army Regulation 600-8-24, paragraph 2-21.

11.  The applicant was released from active duty on 29 February 2008 under the provisions of Army Regulation 600-8-24, chapter 2, paragraph 2-7.

12.  The Human Resource Command (HRC) Integrated WEB Services shows her MRD as 28 February 2008.

13.  The applicant's Summary of Retirement Points shows that she has completed 17 years of qualifying service for retirement purposes.  

14.  An email was provided by the OTSG (Office of The Surgeon General), Army Nurse Corps, who informed this Board that the Army had no moral obligation to allow the applicant to serve until retirement eligible based on her age and age in grade waiver, at the time of her appointment.  The OTSG indicated that at the time of appointment the applicant should have signed a document indicating that she would be unable to serve until retirement eligible.  A review of the applicant's OMPF (official military personnel file) failed to show such documentation.

15.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing transfer and discharge of officer personnel.   
Paragraph 2-7 states that individuals will be processed for release from active duty due to their expiration of active duty commitment.  

16.  Paragraph 2-21, of the same regulation, pertains to rules for processing involuntary release from active duty due to maximum service.  It states, in pertinent part, that an officer will be released from active duty (REFRAD), unless he or she requests voluntary retirement, on the last day of the month in which she attains the following maximum ages, unless the officer’s release date is required sooner by maximum service, or the Secretary of the Army authorizes the officer’s retention on an individual basis.  Any other commissioned officer, other than warrant officer, will be REFRAD at age 60.  The Secretary of the Army may retain in an active status certain ARNG or USAR officers, with their consent, in the Medical Corps, Dental Corps, Veterinary Corps, designated as an allied health officer; biomedical sciences officer or the optometry section of the Medical Services Corps, the ANC, Army Medical Specialist Corps, and the Chaplain Corps.  The officer must fill a missions-based manning requirement.  Retention under this provision may not extend beyond the date on which the officer becomes 67 years of age (10 USC 14703).  Request for retention under this provision will be forwarded to the CG (Commanding General), HRC – St. Louis for USAR officers.  Officers in the grade of captain who fail selection for promotion to major for the second time will be removed from active duty no later than the first day of the seventh month after the board that considered the officer the second time receives final approval authority, unless the officer has a service remaining obligation or is retained under other provisions of law.

17.  Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve. 

18.  Paragraph 7-3, in the above cited regulation, provides guidance on length of Reserve service.  It states, in pertinent part, that the actual removal date will be the last day of the month in which the soldier reaches age 60.

19.  Sections 12731 through 12739 of Title 10, USC, authorize retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay 
at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  

20.  Chapter 1407, of Title 10, USC, Subtitle E, Part III, pertains to failure of selection for promotion and involuntary separation.  Section 14509 pertains to Reserve officers in grades below brigadier general or rear admiral (lower half) who will be separated at age 60.  It states that each reserve officer of the Army, Navy, Air Force, or Marine Corps, in a grade below brigadier general or rear admiral (lower half), who has not been recommended for promotion to the grade of brigadier general or rear admiral (lower half) and is not a member of the Retired Reserve shall, on the last day of the month in which that officer becomes 60 years of age, be separated in accordance with section 14515 of this title. 

21.  Section 14515, of Chapter 1407, Title 10, USC, Subtitle E, Part III, pertains to discharge or retirement for age.  It states that each reserve officer of the Army, Navy, Air Force, or Marine Corps who is in an active status or on an inactive-status list and who reaches the maximum age specified in section 14509, 14510, 14511, or 14512 of this title for the officer’s grade or position shall (unless the officer is sooner separated or the officer’s separation is deferred or the officer is continued in an active status under another provision of law) not later than the last day of the month in which the officer reaches that maximum age:  (1) be transferred to the Retired Reserve if the officer is qualified for such transfer and does not request not to be transferred to the Retired Reserve; or (2) be discharged from the officer’s reserve appointment if the officer is not qualified for transfer to the Retired Reserve or has requested not to be so transferred. 

22.  Chapter 1409, of Title 10, USC, Subtitle E, Part III, pertains to continuation of officers on the RASL and selective early removal.  Section 14701 pertains to selection of officers for continuation on the RASL.  It states that a reserve officer of the Army who is required to be removed from the reserve active-status list, subject to the need of the service, may be considered for continuation on the RASL under regulations prescribed by the Secretary of the Defense.  A reserve officer who holds the grade of captain in the Army and who is subjected to separation may not be continued on the RASL for a period which extends beyond the last day of the month in which the officer completes 20 years of commission service.  

23.  Section 14702, of Chap 1409, Title 10, USC, Subtitle E, Part III, pertains to retention on RASL of certain officers until age 60.  It states notwithstanding the provisions of Section 14506, 14507, or 14508, of this Title, the Secretary of the Military Department concerned may, with the officer's consent, retain on the RASL an officer in the grade of major, lieutenant colonel, colonel, or brigadier general who is:  (1) an officer of the Army National Guard of the United States and assigned to a headquarters or headquarters detachment of a State; or (2) a reserve officer of the Army or Air Force who, as a condition of continued employment as a National Guard or Reserve technician is required by the Secretary concerned to maintain membership in a Selected Reserve unit or organization.  An officer may be retained under this section only so long as the officer continues to meet the conditions of subsection (a)(1) or (a)(2).  An officer may not be retained under this section after the last day of the month in which the officer becomes 60 years of age. 

24.  DODI 6000.13, implements policy, assigns responsibilities, and prescribes procedures under DOD Directive 6000.12 "Health Services Operations and Readiness", to carry out manpower and personnel programs.  DODI 6000.13, paragraph 6 pertains to entry grade credit.  It states that a prospective health profession officer’s entry grade and rank within grade shall be determined by the number of years of entry grade credit awarded on original appointment, designation, or assignment as a health professions officer. The entry grade credit to be awarded shall equal the sum of constructive service credit and prior commissioned service credit (other than as a commissioned warrant officer), except in cases where the total exceeds the maximum credit allowed.  A period of time shall be counted only once when computing entry grade credit, and qualifying periods of less than one full year shall be proportionately credited to the nearest day, except where noted otherwise.  Credit shall be awarded in accordance with this Instruction.

25.  Army Regulation 135-101 provides the policy and sets forth the procedures for Reserve Appointment of Army Medical Department (AMEDD) officers with 
or without a concurrent call to active duty.  Paragraph 1-5 pertains to general eligibility criteria.  It states, in pertinent part, that the minimum age for appointment and assignment to an AMEDD branch is 21.  The maximum age in grade for 1LT/O-2 is 38 years.  Applicants for appointment with concurrent active duty must be able to:  (a) Complete 10 years commissioned service before completing 20 years to qualify for retirement, under Title 10, USC, Section 3911; and (b) Complete 20 years of service to qualify for retirement, before reaching the date when involuntary removal from active duty is required by Army Regulation 635-100.

26.  Chapter 3 pertains to entry grade credit for Reserve appointment grade determination.  Subparagraph 3-1b states that constructive service credit will be granted for periods of professional training and experience accrued after receipt of the basic qualifying degree.  The regulation also stated that a period of time would be counted only once when computing entry grade credit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's birth date is 28 February 1948.  



2.  The evidence of record shows that the applicant was appointed as a Reserve commissioned officer, in the rank of 1LT, on 26 May 1990, in the ANC, at the age of 42, with an established MRD of 28 February 2008.  She was granted an age and age in grade waivers when she was appointed.

3.  The applicant was considered for promotion by the 2001, 2002, and 2004 RCSBs and was not selected based on her failure to complete the required civilian and/or military education requirements.  She was required to be discharged.

4.  The evidence shows that applicant requested an extension past her MRD for SELCON and age which was disapproved.  She was released from active duty effective 29 February 2008.  At that time, she had completed 17 years of qualifying service for retirement purposes.

5.  At the time of her release from active duty, she was 60 years of age.  According to regulation, the applicant's removal date was the last day of the month in which she reached age 60, or in this case, 28 February 2008.

6.  The applicant alleges that she should be entitled to additional service credit and per regulation, with her many years of civilian service, she should have been appointed as a captain which would have adjusted her DOR substantially.  There is no evidence of record, and the applicant has provided none, to show that she was entitled to any additional constructive service credit at the time she entered the Army Reserve.  There also is no evidence to show that she should have been commissioned as a CPT which would have adjusted her DOR substantially and further would have resulted in a pay increase and the ability to be competitively promoted without the education factor.

7.  Based on the foregoing, the applicant was removed from the Army Reserve  according to law and regulation.  Therefore, the applicant is not entitled to be extended past her MRD, of 28 February 2008, or retention in the Reserve in order to qualify for retired pay and benefits.









BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__CD____  __LD____  __JR___  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.




______Carmen Duncan________
          CHAIRPERSON



INDEX

CASE ID
AR20070016101
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2008
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . USAR ON AD
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.

2.
128
3.

4.

5.

6.