IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20090020976 


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 his mandatory removal date (MRD) of 31 January 2001 be extended to 21 August 2009.

2.  The applicant states he was unaware and uninformed that his MRD expired on 31 January 2001.  He was allowed to drill and was deployed in 2003 to 2004 and in 2005 he served in Operation Iraqi Freedom.

3.  The applicant provides the following documents:

* Department of the Army, 88th Regional Readiness Command, Orders 05-187-00181, dated 6 July 2005
* Memorandum, Subject:  Ordered to Active Duty, dated 4 November 2003
* Department of the Army, 94th Regional Readiness Command, Orders
03-268-00004, dated 25 September 2003
* AHRC Form 249-2-E (Chronological Statement of Retirement Points), dated 30 October 2009
* Email, dated 20 October 2003
* Memorandum, Subject:  Recommendation for MRD Extension for Time Served for LTC (Applicant's name and social security number)
* DA Form 67-9-1 (Officer Evaluation Report Support Form), 


CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 10 January 1941.  He was appointed as a Reserve captain on 3 September 1985 in the Medical Corps.  

2.  He was promoted to major on 5 May 1987 and to lieutenant colonel on 4 May 1996.  

3.  The applicant reached age 60 on 10 January 2001.  

4.  His Chronological Statement of Retirement Points shows he had completed 15 years of qualifying service for retired pay at age 60 as of January 2001.  

5.  Orders published on 29 July 2002 show the applicant was ordered to active duty on 1 September 2002 to the CONUS [continental United States] Replacement Center at Fort Benning, GA for mobilization in support of Operation Enduring Freedom.  Orders published on 13 September 2002 released the applicant from active duty on 14 September 2002 because he was declared non-deployable.  He was assigned to the 405th Combat Support Hospital.

6.  Orders published on 25 September 2003 show the applicant was ordered to active duty on 2 October 2003 in support of Operation Enduring Freedom for 120 days.  He was released from active duty on 31 January 2004 and assigned to the 804th Medical Brigade.  

7.  In a 4 November 2003 letter, the commanding officer of the 405th Combat Support Hospital in Newington, CT stated the following:

* The 405th Combat Support Hospital and the U.S. Army Reserve ordered the applicant to active duty on 2 October 2003 for 120 days
* The applicant is a doctor in the Army Reserve
* The applicant is performing active duty outside the United States in support of Operation Enduring Freedom

8.  Orders published on 6 July 2005 show the applicant was ordered to active duty on 4 September 2005 in support of Operation Iraqi Freedom for 365 days.  

9.  The applicant was issued an Upcoming Eligibility for Retired Pay at Age 60 
(19-Year Letter) on 24 November 2005.  

10.  His Chronological Statement of Retirement Points shows he had completed 20 years of qualifying service for retired pay at age 60 as of retirement year ending 2 September 2006.  
11.  In a 19 December 2008 memorandum, the commanding officer of the 883rd Medical Company recommended the applicant’s request for MRD extension for time be approved.  The commanding officer stated the applicant had served admirably past his MRD with the 883rd Medical Company and had a creditable record of performance with this unit during his approved tenure.  

12.  On 18 August 2009, the Chief, Adjutant General Directorate, U.S. Army Human Resources Command, St. Louis, MO (HRC-St. Louis) denied the applicant’s request for retention beyond his MRD.  The applicant was advised to apply to this Board to be sure he was credited with all points after his last approved retention date on 31 January 2001.  

13.  Effective 21 August 2009, the applicant was transferred to the Retired Reserve due to reaching his maximum age.  

14.  The applicant was retired and placed on the retired list on 21 August 2009 in the rank of lieutenant colonel.  His reassignment orders published on 21 August 2009 show he was released from the Reserve components by reason of reaching his maximum age.  

15.  In a 26 October 2009 letter, the Chief, Transition and Separations Branch, 
HRC-St. Louis informed the applicant of the following:

	a.  To be eligible for retired pay at age 60, under Title 10, U.S. Code, sections 12731-12737, a Reserve Soldier or former Reserve Soldier must have completed a minimum of 20 qualifying years of service, the last 8 years of which must have been in a Reserve component.

	b.  Service in an inactive reserve section, such as the Retired Reserve, is not creditable for retirement purposes.  Since July 1949, a Reserve Solider must have earned at least 50 retirement points per year for that service to be creditable for retirement.

	c.  An audit of his military records show that as of 31 January 2001, he completed 15 years of qualifying service for retirement and was ineligible to receive retired pay.  

16.  Title 10, U.S. Code, chapter 1407, section 14507(a) provides the law for removal from the Reserve Active Status List (RASL) of Reserve Component officers in the grade of lieutenant colonel.  It states that removal will be on the 
first day of the month after the month in which the officer completes 28 years of 


commissioned service.  The maximum years of commissioned service is computed from the date of initial appointment and total commissioned service does not include breaks in service.

17.  Title 10, U.S. Code, section 14702(b) states that 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.

18.  Title 10, U.S. Code, section 14703, Authority to retain chaplains and officers in medical specialties until specified age, states 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, but the officer cannot be retained beyond age 67. 

19.  Title 10, U.S. Code, sections 12731 through 12739, authorizes retired pay for Reserve Component military service.  Under section 12731(a)(1) and (2), a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  Pursuant to section 12732(a)(2), after 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant reached age 60 in January 2001; however, he had not completed 20 years of qualifying service at that time.  

2.  Although the applicant’s request for MRD extension beyond January 2001 was disapproved, the Army continued to allow the applicant to drill and deploy.  

3.  It would be equitable to now correct the applicant's records to show that he was granted a waiver to remain in an active status until retirement year ending 2 September 2006, when he attained 20 years of qualifying service for retired pay at age 60.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  showing he was granted an extension of his MRD until 2 September 2006, he was eligible for a Reserve retirement, he applied for retirement to be effective
2 September 2006, and his application was processed in a time manner; and

   b.  paying him all retired pay due as a result of this correction.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to extending his MRD to 21 August 2009.



      ___________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)                                         AR20090020976



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ABCMR Record of Proceedings (cont)                                         AR20090020976



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