IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20090019828 


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, that she be extended past her mandatory removal date (MRD) of 31 May 2003 and that she be retained in the Reserve to qualify for retired pay and benefits. 

2.  The applicant states the reason told to her was that they "wanted my slot for a younger person."  The applicant further states that she served faithfully and meritoriously for sixteen and a half years.  She continues that she:

* maintained physical fitness
* completed numerous schools
* received orders for active duty deployment to Germany
* orders were never revoked

3.  The applicant provides:  

* memorandum to the Commander, 94th General Hospital, dated 24 August 2002
* memorandum to the 90th Regional Support Command (RSC), dated 
* 12 November 2002
* two memoranda to the U.S. Army Reserve Personnel Command (AR-PERSCOM), with dates 21 November 2002 and 27 January 2003
* 90th RSC Orders M-064-0136, dated 5 March 2003
* memorandum from AR-PERSCOM, dated 21 March 2003
* two letters of support with dates 24 March 2003 and 30 March 2003
* memorandum to AR-PERSCOM, dated 26 March 2003
* memorandum from AR-PERSCOM, dated 14 April 2003
* memorandum to her State Senator, dated 7 December 2004

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 was born on 4 May 1941.  She was appointed as a U.S. Army Reserve (USAR) commissioned officer in the rank of first lieutenant (1LT) on       1 November 1986, in the Army Nurse Corps (ANC), at the age of 45 with an MRD of 4 May 2001.  

3.  In June 2001, the applicant submitted a request for retention beyond her MRD.  She was granted a two-year extension based on the needs of the service. Her MRD was adjusted to 31 May 2003.

4.  On 24 August 2002, the applicant again submitted a request for retention beyond her MRD.  She requested her MRD be changed to 30 November 2006.  The applicant indicated that the change would allow her 20 years for retirement.  She further indicated that she understood that without the extension she would not be eligible for retired pay.

5.  On 18 September 2002, the applicant was promoted to rank of lieutenant colonel (LTC).

6.  On 27 February 2003, the Director, Personnel Actions and Services 
AR-PERSCOM, (known now as Human Resources Command, St. Louis (HRC-STL)), informed the applicant that her request was disapproved based on a high density Area of Concentration (AOC) which was over strength at 155 percent.

7.  90th RSC Orders M-064-0136, dated 5 March 2003, show that the applicant was ordered to active duty in support of Operation Enduring Freedom for a period of 365 days.
8.  On 21 March 2003, the Deputy Chief of Staff, 90th RSC, informed the applicant that a DA Message dated 20 November 2002 reference Reserve Component (RC) Unit Stop Loss was updated and rewritten which stated Soldiers who have reached or will reach their MRD during the mobilization period for which the unit is initially mobilized are exempt from Stop Loss.  The Deputy Chief of Staff further stated that the applicant would be separated on 31 May 2003 in accordance with the law for reaching maximum age, unless an extension approval from HRC-STL was granted.

9.  On 26 March 2003, the applicant requested reconsideration for retention beyond MRD.

10.  On 14 April 2003, the Director, Personnel Actions and Services HRC-STL, again informed the applicant that her request was disapproved based on a high density AOC that was over strength at 155 percent.

11.  On or about 16 June 2003, the applicant was separated from the USAR.

12.  The applicant's Summary of Retirement Points shows that she had completed 16 years, 7 months, and 16 days of qualifying service for retirement purposes.  

13.  Title 10, U. S. Code, section 14702(b) provides that an officer may not be retained in an active status after the last day of the month in which the officer becomes 60 years of age.  Section 14703(a)(1) provides that the Secretary of the Army may, with the officer's consent, retain in an active status any reserve officer assigned to the Medical Corps, the Dental Corps, the Veterinary Corps, the Medical Services Corps, the Optometry Section of the Medical Services Corps, the Chaplains, the Army Nurse Corps, or the Army Medical Specialists Corps.  Section 14703(b) provides that an officer may not be retained in an active status under this section later than the date on which the officer becomes 67 years of age.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that she was appointed as a Reserve commissioned officer on 1 November 1986 at the age of 45.  Her established MRD was 4 May 2001, the day she turned age 60.

2.  In May 2001, the applicant was granted a two-year extension based on the needs of the service, which adjusted her MRD to 31 May 2003.  On 24 August 2002, she requested another retention beyond her MRD, to 30 November 2006.  The adjustment would have allowed her to obtain 20 years for retirement.  She understood without the extension she would not be eligible for retired pay.  

3.  The request for extension was disapproved by HRC-STL based on her AOC that was overstrength at 155 percent.  On 26 March 2003, the applicant requested reconsideration of her previous extension past MRD.  Her request again was disapproved due her being in an over strength AOC.  On or about 
16 June 2003, the applicant was separated from the USAR after completing 16 years, 7 months, and 16 days of qualifying service for retirement purposes.

4.  When she was appointed in the USAR, the applicant knew that she would not qualify for retired pay at the age 60.  Because of extensions to have her MRD, she was allowed to serve past age 62.  Unfortunately, she is now age 69 and has been without a military status for 7 years and by law is now well past the maximum retention age.  

5.  Based on the foregoing, the applicant was removed from the USAR according to law and regulation.  Regrettably, the applicant is not entitled to be extended past her MRD of 16 June 2003 or retention in the USAR in order to qualify for retired pay and benefits.

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)                                         AR20090019828





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090019828



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1