IN THE CASE OF:	  

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090005303 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, recalculation of her U.S. Army Reserve (USAR) retirement points, revocation of her discharge from the USAR, and issuance of a 20-year letter.  She specifically requests that her DA Form 249-E (Chronological Statement of Retirement Points) be corrected to show extension course points for the following retirement years:

	a.  retirement year ending (RYE) 28 September 1992, 47 points;

	b.  RYE 28 September 1993, 36 points; and

	c.  RYE 28 September 1994, 38.5 points.

2.  The applicant states the USAR did not credit her ARPC Form 249-E with the correct number of extension course points for the training that she completed during the period 29 September 1991 through 28 September 1994.  She states that she first became aware of this problem on 3 May 1995, and that while she was trying to get the problem resolved, she was "engineered out."  She then focused on being reinstated and she continued to focus on reinstatement until she felt she had exhausted all resources and had no access to legal service providers that were knowledgeable of the military.  This was in early 1997.  The applicant states that she solicited assistance from a Member of Congress in 2002 and provided a copy of the USAR's response along with this application.  The applicant contends that had she been credited with the correct number of points, she would have completed over 20 years of qualifying service for retirement and been eligible to receive a 20-year letter.

3.  The applicant provides the following documentation as evidence in support of her request:

	a.  a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 22 March 1967;

	b.  a letter of acceptance to a position in the 307th General Hospital located in New York, New York, dated 5 October 1976, with an effective date of 1 November 1976;

	c.  a DD Form 214 (Report of Separation from Active Duty) for the period ending 31 October 1976;

	d.  a DA Form 4851-R (Request for Reserve Component Assignment or Attachment), dated 11 October 1983;

	e.  a DARP Form 1708 (Mail Contact Card), dated 17 August 1994; 

	f.  USAR Personnel Center, St. Louis, Missouri, letters, dated 11 July 1995; and 2002;

	g.  a USAR Personnel Center order, dated 6 September 1995;

	h.  an ARPC 249-2-E (Chronological Statement of Retirement Points), dated 7 March 2003;

	i.  31 DA Forms 1380 (Record of individual Performance of Reserve Duty Training dated between 19 April 1991 and 29 September 1995, inclusive;

	j.  	a hand-written DD Form 2656 (Data for Payment of Retired Personnel), dated 7 April 2003; and

	k.  an electronic mail message, dated 14 October 2008.

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 enlisted in the USAR on 29 September 1965.  On 22 March 1967, after completing a total of 1 year, 5 months, and 24 days of active duty service, she was honorably discharged from the enlisted ranks of the USAR for the purpose of accepting a commission as an officer.  

3.  The applicant served on active duty during the period 23 March 1967 through 31 October 1976.  She was honorably released from active duty and assigned to a USAR billet in the 307th General Hospital.  At this time, she had completed a combined total of 11 years, 1 month, and 2 days of active service.  The applicant was appointed as a captain in the Army Medical Department (AMEDD) of the USAR effective 1 November 1976.

4.  The applicant provides a DA Form 4851-R, dated 11 October 1983, which shows she requested to be transferred to the USAR Control Group (Reinforcement), effective 1 November 1983, due to a personal hardship.

5.  The applicant's record contains (and she also provides) a USAR Personnel Center, St. Louis, letter, dated 11 July 1995, which shows the Chief of the Soldier's Support Division informed the applicant her records indicated she had completed the maximum amount of service that a USAR lieutenant colonel could serve in an active status and that she would have to be discharged or retired by 20 April 1995.  He also informed her that she could request transfer to the Retired Reserve or to be discharged.  The Chief of the Soldier's Support Division further informed the applicant that if she had completed 20 qualifying years for retirement purposes (50 retirement points required for each creditable retirement year), she would be eligible to receive retired pay benefits at age 60, regardless of whether she elected transfer to the Retired Reserve or discharge.  He also informed the applicant that some Army Medical Department officers could apply for an extension beyond their normal mandatory removal date (MRD) (as an exception to policy).  He advised her to contact her personnel management officer for further details.  The Chief of the Soldier's Support Division asked the applicant to indicate her preference on an enclosed form and to return it in the self-addressed envelope provided.  The applicant was advised that her reply must be received no later than 11 August 1995 to be processed for retirement prior to her mandatory removal date.  She was also advised that if the reply was not received, she would be automatically discharged as required by law.

6.  The applicant provides a DARP Form 1708, dated 17 August 1994, showing a personnel management officer at the USAR Personnel Center, St. Louis, acknowledged receipt of the applicant's request for extension beyond her MRD and indicated that she had requested a security clearance and physical exam for the applicant.

7.  The applicant's record contains (and she also provides) USAR Personnel Center Orders D-09-577759, dated 6 September 1995, which show she was honorably discharged from the USAR, effective 6 September 1995.

8.  The applicant provides a USAR Personnel Command letter, dated 23 October 2002, which was rendered by the Director of Personnel Actions and Services in response to an inquiry from a Member of Congress on behalf of the applicant.  The Director informed the Member of Congress that the applicant had been discharged from the USAR after being notification that she had remained in an active status after her MRD had expired.  The Member of Congress was also advised that extensions beyond the MRD are granted based on the specific needs of the Army and that although AMEDD officers are eligible for retention to age 67, retention is not automatic.  The officer must apply and a board considers the request based upon the requirements of the Army and provides a recommendation to the final approval authority.  The Director informed the Member of Congress that although the applicant indicated she desired to be retained beyond her MRD, no formal request was received by the appropriate office and no board was held concerning the applicant's retention.  When no other correspondence was received from the applicant, and because she was not eligible for transfer to the Retired Reserve, discharge orders were issued in accordance with applicable Army regulations.

9.  The applicant provides an ARPC Form 249-2-E, dated 7 March 2003, which shows she was credited with a total of 17 years, 8 months, and 28 days of qualifying service for retirement and 4,675 total points creditable for her service during the period 29 September 1965 through 6 September 1995.  This form also credited the applicant with the appropriate number of inactive duty points (IDP), extension course points (ECP), membership points (MP), active duty points (ADP), qualifying service for retirement (QSR), and total points creditable (TPC) during the following retirement years (all of which end on 28 September):

RYE 		IDP	ECP	MP	ADP		QSR			TPC 
1995		000	000	14		0000		00 00 00		0014
1994		003	003	15		0000		00 00 00		0021
1993		000	000	15		0000		00 00 00		0015
1992		000	000	15		0000		00 00 00		0015
1991		000	000	15		0000		00 00 00		0015

10.  On the reverse side of the ARPC Form 249-2-E, dated 7 March 2003, the applicant indicated she should be credited with additional IDPs as follows:  

On 29 September 1983 through December 1986, completion of third Master's Degree, 50 credits;
RYE 1992, 47 points;
RYE 1993, 36 points;
RYE 1994, 38.5 points; and 
RYE 1995, 73.65 points.

11.  The applicant provides 31 DA Forms 1380 and related attachments, dated between 19 April 1991 and 29 September 1995.  The applicant rendered these DA Forms 1380 in order to request retirement points for completion of training courses and/or attendance of professional symposiums, seminars and meetings on various medical subjects.  A thorough review of these documents revealed that the applicant consistently indicated that she had earned one retirement point for each hour that she spent in training or in attendance of professional symposiums, seminars and meetings.  Using this logic, the applicant determined that she had earned the number of retirement points indicated on the reverse side of the aforementioned ARPC Form 249-2-E, dated 7 March 2003.

12.  The applicant provides a hand-written DD Form 2656, dated 7 April 2003, which shows she provided information required for receipt of retirement pay upon reaching age 60 on 6 April 2005.  The applicant did not provide a copy of a response to her application.

13.  The applicant provides an electronic mail message, dated 14 October 2008, which shows a lawyer contacted a U.S. Army civilian on the applicant's behalf.  The lawyer stated that he had reviewed the DA Forms 1380 provided by the applicant and was of the opinion that they supported her contention that she had not been awarded the correct number of retirement points.  The lawyer concluded that had the applicant been awarded the correct number of points, it would have resulted in at least four additional qualifying retirement years; which when added to the 17 years, 8 months, and 28 days would make her eligible for retirement.

14.  In the processing of this case, an ARPC Form 249-E (Chronological Statement of Retirement Points) was generated on 9 March 2009.  This form shows an increase in the applicant's ECP and TPC for RYEs 1992 through 1995; which resulted in an increase of her TPC from 4,675 to 4,729.  However, these new points did not result in the applicant earning a minimum of 50 TPC during 

any retirement year or increase her qualifying service for retirement.  The new totals are shown below:

RYE 		IDP	ECP	MP	ADP		QSR			TPC 

1995		000	021	14		0000		00 00 00		0035
1994		003	012	15		0000		00 00 00		0030
1993		000	011	15		0000		00 00 00		0026
1992		000	013	15		0000		00 00 00		0028
1991		000	000	15		0000		00 00 00		0015

15.  In the processing of this case, an advisory opinion was obtained from an annuity and retirement analyst assigned to the Transition and Separations Branch, U.S. Army Human Resources Command, St. Louis.  Based on a review of her official records and all documentation provided by the applicant, only two additional extension course points for RYE 1991 could be verified.  No additional points were found to give additional credit for certification for retired pay.  The advisory official stated that Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) governs award of retirement points and that correspondence courses are credited one point for each three credit hours satisfactorily completed.  The advisory opined that the applicant had already been given credit for the other courses that she submitted and there was no further action to be taken by their office.

16.  On 1 October 2009, the applicant was provided a copy of the above advisory opinion for review and comment.  She did not respond.

17.  An ARPC Form 249-E that was generated on 9 March 2009 shows an increase of two in the applicant's ECP and TPC for RYE 1991 which resulted in an increase of her TPC from 4,729 to 4,731.  However, these new points did not result in the applicant earning a minimum of 50 TPC during any retirement year or increase her qualifying service for retirement.  The new totals were as shown below:

RYE 		IDP	ECP	MP	ADP		QSR			TPC 

1995		000	021	14		0000		00 00 00		0035
1994		003	012	15		0000		00 00 00		0030
1993		000	011	15		0000		00 00 00		0026
1992		000	013	15		0000		00 00 00		0028
1991		000	002	15		0000		00 00 00		0017

18.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), in pertinent part, provides that USAR officers in the ranks of lieutenant colonel and below who attain maximum service will be removed from active status.  Unless granted a waiver, they will be discharged or, if eligible and the Soldier applies, be transferred to the Retired Reserve on the earlier of the following dates and that the actual removal date will be 30 days after:

	a.  they complete 28 years of commissioned service if under the age of 25 at initial appointment; or

	b.  their 53rd birthday if age 25 or older at the initial appointment.

19.  Sections 12731 through 12738 of Title 10, U.S.C., 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.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

20.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized.  Paragraph 2-4 and Table 2-1 of this regulation prescribe that upon successful completion of Army correspondence course nonresident instruction, one point will be credited for each three credit hours satisfactorily completed.  These references also state that one point will be credited for each two hour or greater period spent in attendance at authorized conventions, professional conferences, or appropriate trade association meetings in a nonpay status; not to exceed a maximum of one point in one calendar day.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for recalculation of her USAR retirement points, revocation of her discharge from the USAR, and the issuance of a 20-year letter was carefully considered and determined to lack merit.

2.  The available evidence shows the applicant has been credited with all of the retirement points to which she is entitled.  The available evidence also clearly shows the applicant mistakenly believed she was entitled to one retirement point for each correspondence course credit hour she attended and each hour that she spent in training or in attendance of professional symposiums, seminars and meetings.  In actuality, she was only entitled to one point for each three correspondence course credit hours satisfactorily completed and one point for each two hour or greater period spent in attendance at authorized conventions, professional conferences, or appropriate trade association meetings in a nonpay status; not to exceed a maximum of one point in one calendar day.

3.  The applicant’s records clearly show that between 29 September 1965 and 6 September 1995, she earned only 17 years, 8 months, and 28 days of qualifying service.  She has provided no evidence to substantiate her contention that she earned at least to 20 qualifying years of service for retirement.  Unfortunately, the applicant is not entitled to receive retirement pay at age 60.

4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  __X____  ___X____  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.



      __________X __________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090005303



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ABCMR Record of Proceedings (cont)                                         AR20090005303



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