IN THE CASE OF:
BOARD DATE: 27 May 2010
DOCKET NUMBER: AR20090020810
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 reflect she was approved for an extension of her mandatory removal date (MRD) so she may be credited with pay and retirement points earned for service performed after her 60th birthday.
2. The applicant states she was unaware that her MRD was on 3 April 2009 (the date she turned 60). During the period in question, she never received any notification that she was beyond her MRD until 1 September 2009, when she was notified that she has passed her MRD and she was no longer allowed to attend Battle Drill Assemblies (BDA). She continued to drill during the period from April 2009 to September 2009 as ordered and she was unaware she would be retired on her 60th birthday. She was under the assumption that she could stay in until December 2009.
3. The applicant provides the following documents:
* A copy of Orders 09-246-00027, issued by Headquarters, 99th Regional Support Command (RSC), Fort Dix, NJ, dated 3 September 2009
* Copies of email exchange with her 99th RSC Officer Management Branch
* A copy of Orders 092558, issued by the 81st RSC, Fort Jackson, SC on
8 May 2009
* A copy of Annual Training (AT) Order Annex Report, date 12 May 2009
* A copy of her DD Form 108 (Application for Retired Pay Benefits), dated
4 September 2009
CONSIDERATION OF EVIDENCE:
1. The applicant's records show she was born on 3 April 1949.
2. Her records show she was appointed as a second lieutenant in the Army Nurse Corps (ANC) of the U.S. Army Reserve (USAR) and executed a DA Form 71 (Oath of Office - Military Personnel) on 5 December 1988. She subsequently served in various positions and she attained the rank of major (MAJ). She was assigned to the 339th Medical Hospital, Harrisburg, PA.
3. On 3 April 2009, she turned 60.
4. On 8 May 2009, the 81st RSC published Orders 092558 ordering her, as a member of her unit, for AT from 7 June 2009 to 19 June 2009. The Orders state "failure to comply with this order violates UCMJ [Uniform Code of Military Justice]."
5. Her records show she completed her AT from 7 June 2009 to 19 June 2009.
6. On 3 September 2009, the 99th RSC, Fort Dix, published Orders
09-246-00027 releasing her from her current assignment and reassigning her to the Retired Reserve, effective 2 October 2009, by reason of completion of 20 or more years of qualifying service for retired pay at age 60.
7. On 4 September 2009, she submitted a DD Form 108 with 2 October 2009 as the date her retired pay would begin.
8. On 14 October 2009, U.S. Human Resources Command, St. Louis, MO (USAHRC-STL) published Orders P10-910909 placing her on the retired list effective 3 April 2009, the date she turned 60.
9. In the processing of this case, on 13 April 2010, an advisory opinion was obtained from the Chief, Transition and Separations Branch, USAHRC-STL. The advisory official stated that the applicant attained 20 qualifying years of service upon completion of the 2008 Retirement Year End (RYE); however, she was not issued a "Twenty Year Letter." Further, her unit continued to direct her to attend BDAs after her MRD. The law requires all officers (below the grade of brigadier general) to be removed from an active status and retired or discharged unless on a promotion list. All officers are made aware of this fact throughout their career via their annual retirement statement. Despite her failure to understand her military obligations and status, she did operate in good faith, obeying her
assignments and missions as directed by her chain of command. The advisory official recommended the following:
* Correcting her records to show she had an approved MRD extension through 2 October 2009
* Directing the Defense Finance and Accounting Service (DFAS) to correct her retirement record to reflect the additional retirement points and service through 2 October 2009
10. On 13 April 2010, a copy of the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal. On 20 April 2010, she concurred with the advisory opinion.
11. Army Regulation 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers) prescribes policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers. It also defines Ready Reserve Control Groups and the Selected Reserve, provides detailed procedures for removing Soldiers from an active status, and gives procedures for inter-service transfer and selective retention of unit Soldiers. Chapter 7 (Removal from Active Status) provides guidance, with some exceptions, for the removal of commissioned officers for maximum age and/or length of service. Paragraph 7-3 (Maximum Age) of this regulation provides Soldiers not sooner removed for another reason will be removed when they reach maximum age. Removal date will be the last day of the month in which they reach age 60 for field and company grade officers or Soldiers having 20 or more years of qualifying Federal service.
12. Army Regulation 140-10, chapter 3, provides for Army Medical Department (AMEDD) officer removal and processing procedures. It authorizes the retention of Reserve Component officers in an active status in certain AMEDD areas of concentration until age 68. An officer who meets the applicability criteria may be retained beyond his or her mandatory removal date for age (removal rule 2). Retention must be in the best interest of the Army and the specialty of the officer requesting retention must be a recognized shortage specialty.
13. Title 10, U.S. Code, section 14509 states that each Reserve officer of the Army in a grade below brigadier general who has not been recommended for promotion to the grade of brigadier general 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 or retired, if otherwise eligible.
DISCUSSION AND CONCLUSIONS:
1. The applicant was born on 3 April 1949. She was appointed as an ANC officer on 5 December 1988 and she served faithfully and continuously through 2 October 2009. No one issued her a 20-year letter. She was even ordered to AT from 7 June 2009 to 19 June 2009, clearly after her 60th birthday.
2. She was issued an order transferring her to the Retired Reserve effective 2 October 2009. However, when she applied for retired pay, USAHRC approved her retirement, effective 3 April 2009 (60th birthday) instead of 2 October 2009, clearly an injustice.
3. Therefore, her records should be corrected to show she retired on 2 October 2009, and she should also have her retired points and retired pay recalculated based on this correction.
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. showing she submitted and was granted an extension of her MRD through 2 October 2009;
b. amending Orders P10-910909 to show the date she was placed on the retired list as 2 October 2009; and
c. auditing her records and paying her any pay and allowances due as a result of these corrections.
__________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) AR20090020810
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20090020810
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2003 | 2003087893C070212
The applicant provides: The applicant's records contains an advisory opinion from the Chief, Transitions and Separations Branch, AR-PERSCOM, dated 2 June 2003, which states, in essence, that the applicant was honorably discharged from the USAR effective 1 April 2003, per Letter Order Number D-03-312931, dated 26 March 2003. On 30 January 2004, AR-PERSCOM informed the staff of the Board that the applicant was denied selection for promotion to Lieutenant Colonel in 2002 due to civilian...
ARMY | BCMR | CY2009 | 20090007147
IN THE CASE OF: BOARD DATE: 10 September 2009 DOCKET NUMBER: AR20090007147 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applied for retired pay and elected to participate in the standard SBP. The evidence of record shows that prior to his retirement, the applicant was provided an opportunity to make an SBP election when...
ARMY | BCMR | CY2001 | 2001056476C070420
In the opinion of the Board, the e-mail, dated 9 August 1999, the fact that the applicant was promoted to major on 31 August 1999, and the actions taken by unit officials as a result gave the applicant the reasonable impression that her extension had been approved. Thus, the Board concludes that it would be appropriate that the applicant’s promotion to major be considered valid and that all service she performed after reaching her MRD at age 60, up until 16 October 2000, be creditable for...
ARMY | BCMR | CY2010 | 20100008775
After application to the Army Board for Correction of Military Records (ABCMR), he was reinstated as a commissioned officer in the USAR in the rank and grade of major/pay grade O-4. Based on the evidence of record, the applicant executed an oath of office and was commissioned in the USAR on 15 January 1985 at the age of 28 years. Therefore, there is insufficient basis to grant him his requested relief to extend his MRD to 10 March 2016, the date he attains age 60.
ARMY | BCMR | CY2012 | 20120020213
Postal Service delivery confirmations * handwritten notes * copies of U.S. Uniformed Services Identification Cards * orders * administration data printouts * printout of an Integrated Web Services transaction * copies 1 and 4 of her DD Form 214 (Certificate of Release or Discharge from Active Duty) * memorandum, subject: Medical Determination for [Applicant], dated 12 December 2008 * memorandum, subject: Commander's Performance Statement [Applicant], dated 19 April 2009 * memorandum,...
ARMY | BCMR | CY2010 | 20100014331
Counsel requests the following: a. reinstatement to active duty to complete two years of service towards retirement; b. two years of constructive service credit; and/or c. consideration for lieutenant colonel (LTC) by a special selection board (SSB); and/or d. transfer to the Retired Reserve. Title 10, U.S. Code, section 12646(a) states if on the date prescribed for discharge or transfer from an active status a Reserve commissioned officer is entitled to be credited with at least 18, but...
ARMY | BCMR | CY2001 | 2001060279C070421
She submits copies of a memorandum dated 21 April 2001, Request for Exception to Policy and Retention; a memorandum dated 23 April 2001, Request for Exception to Army Regulation 140-10; a letter dated 2 July 2001 from the Office of the Chief, Army Reserve; and a memorandum dated 16 July 2001, Request For Revoking of Discharge. Title 10, USC, section 14509 specifies that each Reserve officer of the Army in a grade below brigadier general, who has not been recommended for promotion and is not...
ARMY | BCMR | CY2002 | 2002073553C070403
The transition packet received by all soldiers stated that if a valid assignment was not available that each soldier qualified for separation pay would receive separation pay for a five year period and then retired pay from the USAR program at age 60. The applicant provided a copy of a memorandum from the 652 nd ASG unit administrator, dated 22 May 2002, which stated that the position currently held by the applicant was not an authorized position for the 652 nd ASG. She also received a...
ARMY | BCMR | CY2010 | 20100023650
She collected active duty pay which was recouped when she began collecting retired pay in January 2011. d. Only when USARC published orders placing her on the Retired List did she or her chain of command take action by submitting a request for a waiver to remain on active duty beyond age 60 to the Army Board of Correction of Military Records. The applicant submitted a rebuttal on 26 July 2011 wherein she stated: * she did not initiate the retirement action it came from HRC * she did not...
ARMY | BCMR | CY2009 | 20090019828
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. 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. 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.