BOARD DATE:      3 August 2010 

		DOCKET NUMBER:  AR20100009453


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 a change of the effective date for her retirement.  In the alternative, she requests that her debt to the U.S. Government be forgiven.

2.  The applicant states that the effective date of her retirement should be changed from 1 December 2007 to 1 July 2009.  She contends that her retirement date of 1 December 2007 is erroneous and unjust.  She explains:

	a.  Pursuant to amended retirement orders, dated 24 May 2007, the applicant was ordered to be retired on 1 September 2007.  During her retirement physical in May 2007, doctors discovered she had breast cancer and immediately began cancer treatment.  Her doctor recommended that she be retained on active duty to complete surgery, radiation therapy treatments, and follow-on cancer treatment.  Accordingly, she was granted a 90-day extension providing a new retirement date of 1 December 2007.  Subsequently, the doctors found a large mass in her right lung.

	b.  On 17 September 2007, the applicant was released from her assignment at the Office of Congressional Affairs, Washington, DC and executed a no-cost permanent change of station move to Headquarters, 9th Regional Readiness Command (RRC) [now known as the 9th Mission Support Command (MSC) in Hawaii.  This move was made so she could be near her husband.  She resumed her cancer treatment at Tripler Army Medical Center (TAMC), Honolulu, Hawaii.

	c.  In October 2007, doctors at TAMC discovered that the applicant was pregnant.  All cancer treatments were stopped.  On 26 October 2007, the applicant informed the Chief, Military Personnel Management, 9th MSC, that she was unable to resolve her medical condition that necessitated her extension on active duty until 1 December 2007.

	d.  The applicant contacted the 9th MSC to obtain another transition order so she could out-process and retire in Hawaii.  The orders she was originally issued required her to report to Fort Myer, VA.  The MSC informed her that Human Resources Command, St. Louis, MO (HRC-STL), would have to provide the necessary paperwork.

	e.  The applicant was informed she was retired, effective 30 November 2007, simply because her extension had expired, even though she did not receive a DD Form 214 (Certificate of Release or Discharge from Active Duty) or a final pay accounting until July 2009.

	f.  The applicant contends that Title 10, U.S. Code, section 1168, states that a member of the Armed Forces may not be discharged or released from active duty until issuance of his/her discharge certificate or certificate of release from active duty, respectively, and his/her final pay or a substantial part of that pay, are ready for delivery to him/her or his/her next of kin or legal representative.  These requirements were not met.

	g.  In December 2007, the applicant informed the 9th RRC that she was still being paid and requested confirmation that she was still on active duty.  She was advised that her status was uncertain and she should submit paperwork to the Warrior Transition Unit and to the Army Medical Board.  Both of these units did not think that was the proper route to take.  The applicant then contacted the Office of The Surgeon General.

	h.  On 7 January 2008, the applicant was advised by the 9th MSC to submit a request for extension on active duty in order to complete her medical treatment.  Her physician recommended her retention on active duty for 12 to 18 months in order to complete the evaluation and treatment plan for her lung mass.

	i.  On 15 January 2008, the applicant submitted, through her chain of command, her request for an extension on active duty.  She also sent a copy to the Office of The Surgeon General.

	j.  Later, on 15 January 2008, the applicant spoke with the Active Guard Reserve (AGR) Manager at HRC-STL.  The applicant was informed that she was being discharged and that the Transition Assistance Point at Fort Myer was to initiate the paperwork.

	k.  The applicant immediately contacted the Fort Myer Transition Assistance Point.  She was informed that because she was in Hawaii, she could not be out-processed at Fort Myer.  The proper transition point was Schofield Barracks.  Personnel at Fort Myer said they would contact HRC-STL and inform them of the proper transition point for the applicant.

	l.  On 16 January 2008, the Chief, Separation Team, HRC-STL, contacted the Commander, U.S. Army Transition Point, Fort Myer.  He advised that the applicant was to be separated in absentia and a copy of the applicant’s DD Form 214 should be mailed to her at the address shown on her separation orders.  This infers that HRC-STL still considered her to be on active duty.

	m.  Despite the memorandum authorizing her to be separated in absentia, the Fort Myer Transition Assistance Point did not exercise that authority until April 2009.

	n.  On 14 April 2009, the supervisor at the Fort Myer Transition Assistance Point informed the applicant that he was preparing her DD Form 214 with an effective date of 1 December 2007.  He further stated that he was taking this action pursuant to directions he received from personnel at the 9th MSC.  He could not explain why the DD Form 214 had not been prepared in 2007.  He could not explain how she could be discharged without meeting the statutory requirements.

	o.  On 7 July 2009, after repeated requests from both the applicant and her husband, the DD Form 214 was finally sent to her.  It was replete with the same errors that were pointed out on the DD Form 214 Worksheet.

	p.  Despite the fact that the DD Form 214 was not prepared and ready for delivery to the applicant until as late as April 2009 and that as of 23 July 2009 she had not received a final accounting of pay, HRC-STL insists that she was retired on 1 December 2007.

	q.  The intransigence, incompetence, and unwillingness to assist the applicant are best attested to by the Chief, Transition Center, Schofield Barracks, Hawaii.  The chief recounts the actions of HRC-STL and their inability to properly resolve the applicant’s retirement.

	r.  The applicant served her country honorably for over 20 years.  At the end when she was diagnosed with having cancer, she only asked for an extension to have her medical problems properly resolved.  Since her continuation on active 
duty in 2007, she has completed treatment for breast cancer and undergone three biopsies and surgery to extract lymph nodes in the lungs.  The surgery was performed on 18 September 2008 at TAMC.  Additionally, she has undergone numerous medical treatments for complications which included nuclear medicine; radiology; hematology; oncology; pulmonary; surgery; ear, nose and throat; ophthalmology; obstetrics and gynecology; adult medicine; pediatrics; labor and delivery.

	s.  The applicant has always considered herself to be on active duty and has never schemed to remain on active duty any longer than necessary to complete her required medical treatment and to be properly out-processed.  She repeatedly sought to resolve this matter correctly only to be ignored or to be referred back and forth from different offices or commands.  As she remained on active duty, the applicant was prohibited from seeking civilian employment since September, 2007.  Had she considered herself to be separated from the Army she would have pursued civilian employment.

	t.  Allowing the Army to back-date the applicant’s retirement date to 
1 December 2007 creates a fiction that all the statutorily required steps necessary to separate the applicant occurred in November 2007.  They did not so occur.  The back-dating of the retirement is misleading and violates Title 10, U.S. Code, section 1168.

	u.  The applicant has now completed the necessary medical treatment and requests to be retired, effective 1 July 2009.

 3.  The applicant provides the following enclosures:

* Orders P-04-79005A01, dated 24 May 2007
* Orders C-04-710733A01, dated 24 May 2007
* Recommendation for Extension on Active Duty
* memorandum for the Office of the Surgeon General, dated 29 August 2007
* Orders P-04-790055A02, dated 31 August 2007
* assignment order to Headquarters, 9th RRC, Honolulu, Hawaii
* envelope, post-marked 7 July 2009 that delivered the DD Form 214
* statement from Lead Transition Assistance Center, Schofield Barracks
* Title 10, U.S. Code, section 1168
* 
memorandum from physician, TAMC
* Request for Medical Extension on Active Duty
* HRC-STL authorization to separate applicant in absentia
* DD Form 214 with noted corrections
* physician’s statement regarding completion of medical care
* e-mail statement
* e-mail to Lead Transition Center, Fort Myer, Virginia
* statement from a Human Resources Officer

CONSIDERATION OF EVIDENCE:

1.  At the time of her application, the applicant was a retired lieutenant colonel, pay grade O-5, U.S. Army Reserve (USAR).

2.  On 25 September 1988, the applicant entered active duty as a USAR officer.

3.  Orders P-04-790055A01, HRC-STL, dated 24 May 2007, directed that the applicant was to be placed on the retired list, effective 1 September 2007.

4.  A letter, dated 3 May 2007, written by the applicant's physician, stated that she had been recently diagnosed with breast cancer and she was under medical care.  The physician recommended the applicant's extension on active duty for a period of 90 days to complete her treatment.

5.  On 29 August 2007, the Director, Army Reserve Active Duty Management Directorate, approved the applicant's extension on active duty to 30 November 2007, or until completion of hospitalization and medical treatment, or whichever comes first.

6.  Orders R-09-786822, HRC-STL, dated 12 September 2007, released the applicant from the Office of Congressional and Legislative Liaison (OCLL), Washington, DC and reassigned her to the 9th Regional Support Command in Honolulu, Hawaii.  This was a no-cost move made at the request of the applicant.

7.  In the processing of this case, on 28 December 2009, an advisory opinion was obtained from the Director, Officer Personnel Management Directorate, HRC-STL.  The opinion found no basis to support the applicant’s request and recommended that her retirement date remain as 1 December 2007.  The advisory official states:
   
a.  Throughout the entire process the applicant was fully aware that her pending effective date for retirement was 1 December 2007.  At no point does she claim, nor do the facts suggest, that after 31 August 2007 she was ever 
given a retirement date other than 1 December 2007, or permission to disregard that retirement date.  To the contrary, she was the one who requested and received the extensions that took her out to 30 November 2007.  To this end, she was fully aware of such as is demonstrated by her voicing concerns about the pending date on several occasions.

	b.  The applicant repeatedly claims she was “discharged” under the provisions of Title 10, U.S. Code, section 1168.  As specifically noted on her orders, she was retired under the provisions of Title 10, U.S. Code, section 3911. She was not “discharged” or “released from active duty” under the provisions of section 1168.  Discharge means a complete severance from all military status.  The applicant’s status was not severed; rather, she was transferred/placed on the Retired List.  This being the case, the provisions of Army Regulation
600-8-24 (Retirements), paragraph 6-3, apply.  Accordingly, the DD Form 214 is not identified as a prerequisite for an approved retirement order to take effect.  The approved order affects the retirement regardless of whether other administrative documents are prepared or served.

	c.  Army Regulation 635-5 (Separation Documents) states that the DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.  It is not intended to have any legal effect on the termination of a Soldier’s service.  As such, neither the erroneous use of terminology by administrative personnel, nor the failure to issue a DD Form 214, voids the applicant’s retirement order or continues her active duty status.

	d.  The HRC-STL Command Surgeon reviewed the applicant’s file to include medical documentation provided by the applicant.  There was no medical basis to support an extension beyond 1 December 2007.  In rendering his opinion, the Surgeon relied in part on Army Regulation 600-8-24, paragraph 1-23b, which states “an officer may only be retained past separation date for medical reasons when continued hospitalization and/or physical disability processing is required.  Per the Surgeon, the applicant was neither pending “continued hospitalization,” nor was she pending physical disability processing.  Rather, she was pending additional medical treatment.  This same paragraph goes on to state “an officer who is medically fit for retention will not be retained beyond the established separation date.”  The applicant’s physical examination completed as a result of her 90-day medical extension determined that she was “fit for duty.”

	e.  In addition, the surgeon refers to paragraph 6-7c of this same regulation, which states that “when a physical evaluation board is not necessary, but additional medical care is, a non-disability retirement will be processed.  Medical treatment will continue up to and after, if necessary, the approved retirement date.  The retirement date will not be changed because of medical treatment.

	f.  On 23 April 2009, the 9th MSC initiated an Army Regulation 15-6 investigation concerning the applicant’s retirement.  The investigator found that it was primarily the applicant’s failure to follow proper retirement out-processing procedures that directly contributed to her improperly receiving full active duty pay and allowances for the period she otherwise should have been retired.  The applicant claims she was never given out-processing instructions.  However, her voluntary retirement application, dated 12 March 2007, provided specific instructions.  Her interaction and conversations with personnel at the Transition Point, Fort Myer, in August 2007, informed her that she would have to request an amendment from HRC-STL to extend her approved retirement date if she could not “final out” at Fort Myer.  Furthermore, the applicant had conversations and/or e-mail communications with the Chief, Military Personnel Management (MPM), 9th MSC on several occasions between November 2007 and October 2008.  On 15 January 2008, the Chief, MPM informed the applicant that she was retired and she should report to the transition point and provide contact information for the transition point.

	g.  The applicant claims that she believed she was on active duty during the period in question.  However, there is no evidence showing that the applicant reported for duty and/or was given any form of permission from her chain of command that could somehow be construed as excusing her from duty.  Rather, it would appear that other than engaging with the personnel section within 9th MSC, the applicant performed no military duty whatsoever during the period from 1 December 2007 to 31 August 2009.  Further, a review of her leave and earning statements do not show she was on any form of leave or excused absence during the period in question.

	h.  The applicant’s argument that equity requires her return to active duty is not supported by the facts or by her actions.  She asserts that from 1 December 2007 until March 2009, she continued to receive pay and benefits; carried an active duty military identification card; submitted to military orders; always held herself as a service member on active duty; did not seek or obtain civilian employment; and underwent numerous medical procedures to include three lung biopsies and cardiothoracic surgery.  However, she has not accounted for gaps in her treatment or provided any record of any convalescent leave.  She has not 

explained where she performed any military duty or what military duty she performed during this period.  As such, equity does not dictate a change in her retirement date.

	i.  Despite having full knowledge of the effective date of her retirement, being specifically and repeatedly told that she would not be extended again, and that she was to report to her transition point for retirement processing, the applicant ignored both the instructions and her orders.  Her failure to comply, especially in light of her affirmative acknowledgement of her 1 December 2007 retirement date, neither voids her standing retirement orders nor continues her active duty status from 30 November 2007 to 31 August 2009.  Accordingly, her retirement date should not be amended.

8.  In response to the advisory opinion, on 22 March 2010, the applicant provided a written rebuttal.  She also enclosed three letters of appreciation from U.S. Senators, three DA Forms 67-9 (Officer Evaluation Reports (OER's)), a letter from her husband, a letter from the Department of Veterans Affairs (VA), and a letter from her physician.

	a.  The applicant strongly urged and requested that the Board consider her exemplary record, the tone of the opinion, and its suggestion that she lacked integrity and had schemed by using her illness as a means to remain on active duty, thereby creating the problems that contributed to HRC-STL failing to fulfill its statutory responsibilities to properly retire her from the Army.

	b.  The applicant also points out the HRC-STL does her and anyone relying on the subject opinion a disservice because the opinion is biased, fails to capture all of the facts, and in some instances, is completely false.

	c.  The applicant contends that the opinion is incomplete because HRC-STL elected not to contact her despite her offer to answer any questions regarding this matter.

	d.   The applicant refers to a telephonic statement made by the Chief of Staff, Office of the Chief, Army Reserve (OCAR), wherein he described HRC-STL as a prosecutor building a case against her.

	e.  The applicant also refers to the statement from the Transition Assistance Program Manager at Schofield Barracks, Hawaii, who wrote that she had never encountered such an unwillingness to assist a Soldier in the resolution of their problem.

	f.  The applicant also asks the Board to consider not just what she may or may not have done, but rather examine the actions of HRC-STL that caused a failure in issuing transition orders so she could out-process in Hawaii.  HRC-STL was unwilling to talk with her or to offer any guidance.  This resulted in the failure to properly prepare and deliver a DD Form 214 and to conduct a final accounting of pay.

	g.  As background, the applicant states that her original retirement date was amended to 31 August 2007 to provide the time necessary to conduct an adequate turnover to her replacement and to complete a retirement physical and out-process.  HRC-STL had denied this change of retired date until the Assistant Secretary of the Army, Manpower and Reserve Affairs, recommended approval.

	h.  When the applicant was diagnosed with breast cancer, a second request for extension of active duty was denied by HRC-STL until The Surgeon General recommended approval.  The HRC-STL denial is worth noting because it shows a disinclination by HRC-STL to treat any request from her favorably.

	i.  The applicant fully intended to retire on 1 December 2007.  However, late in October 2007, doctors discovered she was pregnant.  This required the stopping of her medical treatment for cancer.  She contends that she sought guidance from the 9th RRC and HRC-STL on how to proceed.

	j.  During the month of November 2007, prior to her scheduled retirement date, the applicant made repeated attempts to extend her active duty to resolve her medical condition.  At the same time, she requested the necessary documents needed to out-process in the event her request for extension was denied.  She says that no one would talk to her, entertain any request, clarify her options, or issue a transition order.

	k.  The Chief, MPM, 9th RRC, Honolulu, Hawaii, was not sure what to do, and directed the applicant to continue her medical treatment.  She did so, and carried on as an active duty Soldier.  She never hid the fact that she was on active duty and was receiving full pay and allowances.  Moreover, she remained subject to military orders and she was never transferred or released from active duty.  Like other sick or wounded Soldiers, getting well was her primary duty.

	l.  The applicant argues that Title 10, U.S. Code, section 1168, precludes the discharge or release from active duty a member of the Armed Forces until delivery of a DD Form 214 and final pay, or a substantial part of that pay.  She states one can reasonably believe if they have not been transferred, released from active duty, or discharged, they remain on active duty.

	m.  The applicant argues that a retirement order alone is not sufficient to release and transfer a Soldier from active duty.  Based on Title 10, U.S. Code, 
section 1168, she was not retired until after issuance of her DD Form 214 and accounting of her final pay.  Since these actions were not completed until June 2009, her retired date should be no earlier than 30 June 2009.

	n.  Per DOD Instruction 1336.01, HRC-STL was required to accurately prepare and physically deliver a DD Form 214 to her on her date of separation.  HRC-STL has offered no explanation as to why this did not occur.

	o.  The applicant argues that the U.S. Army considered her to be on active duty because in June 2009, she was directed to report as the subject of an Army Regulation 15-6 investigation.  She was advised that she was suspected of an offense and read her legal rights.  These actions taken by the 9th RRC indicate their belief that she was still on active duty and subject to military orders.

	p.  The applicant responded to the HRC-STL argument that the 20-month delay in preparing and delivering her DD Form 214 was of no consequence because it is only a summary of a Soldier's service and is not intended to have any legal effect on termination of service.  She contends that there are legal ramifications when the DD Form 214 is not promptly prepared.  It is of considerable value in obtaining veterans benefits, reemployment rights, and unemployment insurance.  The failure to provide her with an accurate DD Form 214 has resulted in her inability to in-process with the VA and to receive a determination of any possible disability.  Without the DD Form 214, she has not been able to secure outside employment because she was unable to show proof of her service characterization and demonstrate to potential employers that she had been released from active duty and had no further service obligation.  Therefore, she contends that she still remained subject to military orders and she was subject to court-martial jurisdiction.

	q.  The applicant states the contention that she ignored direction to report to her transition point for processing is false.  She states that as late as December 2009, HRC-STL was operating under the belief that she was still assigned to OCLL, Washington DC., and had travelled to Hawaii without military orders.  This mistaken belief may explain HRC-STL's contention that Fort Myer was her transition point, and why HRC-STL refused to issue transition orders for Schofield Barracks, Hawaii.

	r.  The applicant contends that because she did not have valid transition orders for either Fort Myer, VA or for Schofield Barracks, Hawaii, she could not out-process for retirement.

	s.  The applicant contends that she reported to the 9th RRC and performed duties from 17 September through 30 November 2007.  The Chief, MPM,
9th RRC, Honolulu, Hawaii, told her to consider TAMC as her place of duty and to focus all of her efforts on her medical treatments.  She remained subject to and followed the orders of the Army, maintained an active duty identification card, held herself as an active duty Soldier, and did not seek civilian employment.  She considered her primary duty was to get well.

	t.  The applicant contends that she did not fail to submit another request for extension.  As soon as she learned that she was pregnant, she advised the 9th RRC and requested guidance regarding an extension.  The 9th RRC had never before dealt with a situation like hers and was uncertain what had to be done.  The applicant was advised to contact the Wounded Warrior Transition Unit.  She did, but her attempts were unsuccessful.  On 7 January 2008, she was advised by the Chief, MPM, 9th RRC, Honolulu, Hawaii, to submit a complete packet for extension to the Office of The Surgeon General.  She did not know she had to submit another extension.  She believed that her previous extension had been held in abeyance due to her pregnancy.  She believed she was to continue on active duty until completion of her medical issues.

	u.  The applicant contends that when she reported to Hawaii in September 2007, she had no intention of requesting an extension of her active duty.  This did not occur until late October 2007, when she found out she was pregnant.

	v.  The applicant states that on 20 April 2009, her physician opined that she no longer required any further extension on active duty because her condition was stable.  She would require life-long follow-up care.

	w.  The applicant states that the Defense Finance and Accounting Service began recoupment action in conjunction with issuing her back retirement pay from 1 December 2007 to 31 August 2009.  The recoupment is for more than $167,894.70, and accrues interest in excess of $400.00 every month.  She has no idea how DFAS arrived at this amount, other than DFAS states that they show she was retired from the Army on 30 November 2007.

9.  The applicant has provided the following three letters:

	a.  21 January 2004, from the Senate Select Committee on Intelligence (SSCI) expressing their appreciation to the applicant for her effort, expertise, and service as an escort officer;

	b.  29 March 2004, from the SSCI thanking the applicant for the support provided by her office; and

	c.  6 August 2007, from a U.S. Senator congratulating the applicant on her retirement and expressing the pleasure he has had in working with her in the Army's Senate Liaison Division.

10.  The applicant has provided copies of the following OER's:

	a.  3 June 2001 to 2 June 2002, as Legislative Affairs Officer;

	b.  13 February 2004 to 1 November 2004, as Congressional Liaison Officer; and

	c.  2 November 2004 to 1 November 2005, as Deputy Chief, Legislative Division.

11.  The applicant provides a letter from her husband, dated 14 January 2010, wherein he states that on or about 17 December 2009 he spoke with the Deputy Chief of Staff (DCS), OCAR.  The subject of this conversation was the applicant's request of 15 October 2009 to the OCAR for a review of her case and the manner in which HRC-STL had handled her retirement.  During the course of this conversation, the DCS referenced HRC-STL comments during a teleconference on the subject that the applicant had brought on her difficulties by moving to Hawaii and away from her transition point at Fort Myer.  The DCS subsequently informed HRC-STL that the applicant had moved to Hawaii on official orders.  The DCS likened HRC-STL behavior to that of a prosecutor trying to prove up his case.

12.  The applicant has provided an undated and unaddressed form letter from the VA located in Honolulu, Hawaii, indicating that the VA needed a VA Form
10-10EZ (Application for Health Benefits) and a copy of military discharge papers in order to determine eligibility for medical care and treatment.

13.  the applicant provides a letter from the Adult Medicine Clinic, TAMC, dated 20 April 2009, wherein the author states that the applicant is a patient in the clinic.  It further states:

	a.  she has a history of multiple medical issues;

	b.  she has been deemed stable;

	c.  she will need life-long follow-up treatment; but

	d.  further delay in her military retirement is not needed to insure this care.

14.  On 22 February 2010, the Chief, Army Reserve, provided a letter in response to the applicant's letter and to this Board's earlier decision that OCAR had jurisdiction in this case.  The Chief, Army Reserve acknowledged that OCAR did not have any such jurisdiction and requested that this Board give proper consideration of the applicant's outstanding military service when making its determination.

15.  On 14 April 2010, the applicant submitted another letter in support of her application.  She enclosed three U.S. Comptroller General Opinions and argues that they support her position that a medical condition discovered during a final physical after issuance of retirement order constitutes "substantial new evidence" that warrants revocation of the retirement order.  She contends that the discovery of her pregnancy, which necessitated abatement of her cancer treatment, was substantial new evidence.  The U.S. Comptroller General Opinions are:

	a.  46 Comptroller General 671, dated  23 February 1967, discusses the use of "substantial new evidence."  The opinion is concerned with the use of such new evidence in determining an individual's retirement status based on a physical disability that required hospitalization.

	b.  1974 Comptroller General LEXIS 1704, dated 26 August 1974, discusses entitlement to pay and allowances incident to retirement.  The opinion is concerned with the retention of an individual on active duty as a result of substantial new evidence discovered within a short time after the effective date of the retirement, for the purpose of immediate hospitalization.

	c.  52 Comptroller General 797, 1973 U.S. Comptroller General LEXIS 173, dated 15 May 1973,  discusses the cancellation of an individual's temporary disability retirement because of continued hospitalization.

16.  Title 10 U.S. Code, section 1168 applies to any release or discharge from active duty.  

17.  Title 10, U.S. Code, section 3911 merely sets the minimum requirements to retire from the Army and does not prescribe the required documents and procedures for terminating active service upon retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her date of retirement should be extended.  In the alternative, she requests that her debt to the U.S. Government be forgiven.

2.  The available evidence clearly shows that the applicant was scheduled for mandatory retirement based on her length of service.  During her final physical, she was diagnosed with breast cancer.  As a result of this diagnosis, she was extended on active duty for completion of her medical treatment, but not to exceed 30 November 2007.

3.  In October 2007, she was discovered to be pregnant resulting in a stoppage of her cancer treatment until after her pregnancy.  The applicant had made several attempts to extend her mandatory date of retirement, but acknowledges that it never was extended.

4.  The applicant contends that she remained on active duty until 30 June 2009 because she had not been previously issued a DD Form 214 or a final accounting of her pay.  She bases this assumption on Title 10, U.S. Code, section 1168 which essentially states that a Soldier cannot be discharged or released from active duty until delivery of a DD Form 214 and accounting of final pay.  

5.  In the processing of the applicant's retirement, a significant delay in preparing and issuing her a DD Form 214 did occur.  Apparently, HRC-STL did not realize that the applicant had been reassigned to Hawaii and did not issue a new set of transition orders to show she was to use the transition point at Schofield Barracks vice the one at Fort Myer.  However, this error was not fatal and did not provide justification for her not being retired on 30 November 2007.

6.  There is no evidence of record, nor has the applicant provided any evidence showing that she performed any Soldier tasks after 1 December 2007.  There are no OER's, leave forms, counseling statements, or other documentation available for review that show the applicant was assigned relevant duties or that she was considered by any chain of command as still being on active duty in their unit.

7.  The applicant asked the Board to consider not just what she may or may not have done, but rather examine the actions of HRC-STL that caused a failure in issuing transition orders so she could out-process in Hawaii.  While the actions or inactions of HRC-STL may have contributed to the applicant's difficulties, they in no way overcome the applicant's obligations.  She clearly knew her retirement was 1 December 2007.

8.  Even though, contrary to HRC-STL's belief, Title 10, U.S. Code, section 1168 applied to the applicant's separation, the Army's failure to issue her a DD Form 214 on 1 December 2007 did not invalidate her status as a retiree because:

	a.  this section of law does not require actual issuance of a DD Form 214 to render a retirement effective;

	b.  the DD Form 214 has no independent legal effect on termination of service (32 C.F.R. 45.3(b); AR 635-5, paragraph 2-1); and

	c.  the effective date of discharge or release from active duty is not dependent on delivery of separation documents when both parties are aware and both intend to effect a separation or discharge on a given date (Hamon v. United States, 10 CI.Ct. 681, 684 (1986), citing Kenon D. Shattuck, 63 Comp. Gen. 251, 252 (1984).

9.  The applicant knew her 1 December 2007 retirement order existed and it had not been extended.  She had acknowledged to HRC-STL in January 2008 that she understood her status as a retiree.  Accordingly, the Fort Myer transition office appropriately backdated the applicant's DD Form 214 to reflect her true date of retirement.

10.  The U.S. Comptroller General opinions provided by the applicant as argument for extending her mandatory date of retirement are concerned with the extension of Soldiers on active duty who have been diagnosed with physical disabilities requiring hospitalization.  They also do not deal with regular retirements.  Because the applicant was never diagnosed as having a physical disability, the opinions do not apply in her case.

11.  Accordingly, the applicant should have reasonably understood that any active duty pay and entitlements received for active duty service on and after
1 December 2007 was unauthorized.   Hence, she had a responsibility to report such income and to return those funds.  Had she taken this action, her current debt would not have occurred.

12.  Furthermore, the applicant had an obligation to use other means to address the apparent disconnect between HRC-STL and the transition points.  She could have contacted the point of contact at Fort Myer who had initially advised her.  She could have requested assistance from her senior commanders and/or initiated an Inspector General inquiry.

13.  In view of the above, the applicant's request should be denied.

14.  As to remission or cancellation of the debt, the applicant may contact the Defense Finance and Accounting Services, Out of Service Pay Section, at (317) 510-6171 for assistance.

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)