IN THE CASE OF:
BOARD DATE: 27 October 2009
DOCKET NUMBER: AR20090007615
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 correction of her records to show she served on active duty for 3.5 years during the period 11 September 2001 through 12 August 2006. She also requests that a statement of non-rated time be placed in her Official Military Personnel File (OMPF) for the period between 1998 through 2008.
2. The applicant states that she was erroneously placed in the Retired Reserve in 1998 based on an error on the part of the Human Resources Command (HRC), St. Louis and was denied the opportunity to train, mobilize, and compete for promotion.
3. The applicant provides a copy of retirement orders, a promotion consideration letter, promotion orders, and mobilization orders for Iraq in support of this application.
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 applicants 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 applicants 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 records show she entered active duty as a commissioned officer on 1 November 1975. She was promoted to captain, and she was honorably released from active duty on 3 March 1989 due to non-selection for permanent promotion.
3. In a memorandum, dated 6 January 1997, the applicant was informed that she had been considered and non-selected for promotion to lieutenant colonel for a second time. This memorandum stated that as a result of a second non-selection, she would be discharged unless she was eligible for and requested transfer to the Retired Reserve, or if she had a remaining obligation, or had between 18 and 20 years of qualifying federal service.
4. A review of the applicant's records show she was transferred to the Ready Reserve effective 4 March 1989 where she remained until she was transferred to the Retired Reserve on 8 January 1998.
5. On 27 March 2006, a Department of the Army Standby Advisory Board considered and recommended the applicant for promotion to lieutenant colonel, pay grade O-5, with a date of rank of 14 March 1997.
6. A review of an ARPC Form 249-E (Chronological Statement of Retirement Points) shows no qualifying "good" years towards retirement during the retirement years from October 1990 through January 1998. This form contains no entries for the years 1999-2005.
7. The Board staff contacted U. S. Army Human Resources Command St. Louis which agreed to award the applicant 15 membership points per retirement year during the period she was in the Retired Reserve based on revocation of the order transferring her to the Retired Reserve in January 1998.
8. The applicant provided information regarding the high use of Army Reserve Soldiers in support of the Operation in Iraq.
DISCUSSION AND CONCLUSIONS:
1. A standby advisory board that convened in March 2006 recommended the applicant for promotion to lieutenant colonel effective 14 March 1997. This action would, in effect, allow her return from the Retired Reserve to the Ready Reserve. However, in spite of the high use of Army Reserve members in support of contingency operations since September 2001, the applicants contention that she would have been called to active duty for 3.5 years during the period 9 September 2001 through 12 August 2006 is only conjecture.
2. Since the applicant did not accrue any qualifying "good" years for retirement at age 60 during the 8 years immediately prior to her transfer to the Retired Reserve, there is no reason to believe that she would have accrued sufficient points to constitute any qualifying "good" years creditable towards retirement during the period January 1998 to October 2006. However, the Board staff took action asking HRC-St. Louis to ensure the applicant receive the retirement points authorized her for this period based on revocation of the order transferring her to the Retired Reserve in January 1998.
3. In view of the foregoing, there is insufficient evidence or basis for granting the applicant any active duty credit for the time period requested.
4. The applicant's records custodian has the responsibility of placing information in her OMPF. Therefore, she should send her request concerning non-rated time to the Commander, U.S. Army Human Resources Command, 1 Reserve Way, St. Louis, MO 631325200.
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) AR20090007615
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