BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100009544 


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 is entitled to U.S. Army Reserve (USAR) service credit and back pay and allowances for the periods 30 April 2004 through 31 July 2004 and 1 August 2005 through 1 August 2007.

2.  The applicant states she was transferred to the Retired Reserve on 1 May 2004 subsequent to a second passover for promotion to lieutenant colonel (LTC). She then entered active duty under the Retiree Recall Program on 1 August 2004 and she was honorably released from active duty on 31 July 2005.  She received full pay and service credit for this one-year period.  However, prior to her retirement, specifically in March 2004, she submitted a request to this Board for an academic waiver and reconsideration for promotion to LTC under the 2002 criteria.  However, no action was taken on her application.  Her application had been mislaid in an office for a whole year at the U.S. Army Human Resources Command, St. Louis, MO (USAHRC-STL) of an employee whose job was to forward her application to this Board in Arlington, VA.  She knows this because she spoke with the employee personally and only due to her continued initiative it was located and considered by this Board in June 2006.  The Board granted her relief and she was considered and selected for promotion by a Special Selection Board (SSB).  She was issued a promotion order promoting her to LTC on
1 August 2007 and placed back into the USAR on that day.  She believes the points and pay are due to her because the lost time was not due to a failure on her part to pursue the appeal in a timely manner.


3.  The applicant provides the following documents: 

* Copies of her ARPC Form 249-E (Chronological Statement of Retirement Points)
* Email exchange with a staff member of this Board
* Certificate of Course Completion of the Combined Arms and Services Staff School
* Diploma certifying her graduation from the Command and General Staff College Course
* May 2004 Retired Reserve orders
* August 2005 release from active duty orders
* August 2007 promotion orders to LTC

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant and she executed a DA Form 71 (Oath of Office – Military Personnel) on 21 July 1982.  She subsequently completed several medical training courses, served in various positions, and she was promoted to major (MAJ) on 1 August 1998.

2.  On 7 January 2002, she entered active duty in support of Operation Noble Eagle for a period of 365 days (later amended).  She was assigned to the Office of the Surgeon General, The Pentagon.

3.  On 17 October 2002, by letter, the U.S. Total Army Personnel Command, St. Louis, notified her she had been considered by the 2002 Department of the Army (DA) Reserve Components Mandatory Selection Board (RCSB) for promotion to LTC but she was not selected.

4.  On 13 November 2002, the U.S. Army Reserve Personnel Command, St Louis, issued the applicant her Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).  This letter notified her she had completed the required years of qualifying Reserve service and she would be eligible for retired pay upon application at age 60. 

5.  On 30 October 2003, by letter, the U.S. Total Army Personnel Command, St. Louis, notified her she had been considered by the 2003 DA RCSB for promotion to LTC but she was not selected.

6.  On 23 March 2004, she submitted a DD Form 149 (Application for Correction of Military Records) wherein she requested a military education waiver and reconsideration for promotion to LTC under the 2002 criteria citing personal extenuating circumstances.  However, it appears her application was not forwarded to this Board for adjudication until May 2005.

7.  On 5 April 2004, she was honorably released from active duty by reason of completion of her required active service and she was transferred to the USAR Control Group (Reinforcement).

8.  On 20 April 2004, USAHRC-STL published Orders C-04-408847 transferring her to the Retired Reserve, effective 1 May 2004, by reason of having been twice non-selected for promotion.

9.  Between 1 May 2004 and 31 July 2004, she did not perform any Reserve service.

10.  On 1 August 2004, she entered active duty under the Retiree Recall Program and she was assigned to Fort Belvoir, VA.

11.  On 2 November 2004, by letter, USAHRC-STL notified her she had been considered by the 2004 DA RCSB for promotion to LTC but she was not selected.

12.  On 31 July 2005, she was honorably released from active duty by reason of completion of required active service.  She was transferred back to the Retired Reserve.

13.  On 20 June 2006, the Board granted her relief in the form of granting her a military education waiver and submitting her records before an SSB for promotion consideration to LTC under the 2002 criteria.

14.  On 18 January 2007, she was considered and selected for promotion to LTC by an SSB under the 2002 criteria.

15.  Accordingly, on 1 August 2007, USAHRC-STL published Orders
B-08-705596, as amended by Orders B-08-705596A01, dated 6 August 2007, promoting her to LTC with an effective date and date of rank of 18 September 2002.

16.  There is no indication orders were published to revoke the orders that placed her in the Retired Reserve in May 2004.  Several attempts were made with the USAR Army Medical Department (AMEDD) Branch, USAHRC-STL to locate such revocation orders; however, to no avail.

17.  She was placed back into the USAR Control Group (Reinforcement), effective 1 August 2007.  Additionally, her retirement year (RY) was initially established from 14 October of one year to 13 October of the following year.  However, upon reinstatement in the USAR, for unknown reasons, her RY was established as January 2006.  Several unsuccessful attempts were made with the USAR AMEDD Branch, USAHRC-STL to determine how the new RY came about; however, again, to no avail.

18.  Her military service records contain a copy of a current ARPC Form 249-E which shows, in pertinent part, her RY was initially established from 14 October of one year to 13 October of the following year.  This document also shows the following entries:

* Her 2003 RY began on 14 October 2003 and ended on 1 May 2004 due to her transfer to the Retired Reserve
* She received zero points for retirement between 1 August 2004 and 31 July 2004 because she was in a retired status
* She received 365 active duty points from 1 August 2004 to 31 July 2005 because she was on active duty
* She received zero points from 1 August 2005 to 9 January 2006 because she was back in a retired status
* Her new RY was established from 10 January of one year to 9 January of the following year
* She received 15 membership points from 10 January 2006 to 9 January 2007
* She received 15 membership points from 10 January 2007 to 9 January 2008 

19.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized.  It discusses the procedures for recording retirement point credits and training for USAR Soldiers.  Paragraph 1-4 (Establishment of retirement year) of this document provides, in pertinent part, that the retirement year once established will not change as long as the Soldier has continuous service in an active status in a Reserve and/or regular component.  It will change when there is a break in active status.  For example, if a Soldier initially entered active status in a Reserve Component on 5 May 1968, entered the Regular Army on 5 July 1970 without a break, transferred to an active status in a Reserve Component on 5 July 1973, then the Soldier's retirement year would be 5 May through 4 May.  This paragraph also provides, in pertinent part, that when it is determined that the RY ending date shown on the DA Form 1383 (Annual or Terminal Statement of Retirement Points) or any other authorized retirement point credit form is incorrect, a letter requesting correction will be submitted to the appropriate area commander or Commander, USAHRC-STL.

20.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) defines qualifying service and states, in pertinent part, that a Reserve Component Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.

21.  Army Regulation 140-185,  Appendix A, provides for the maximum credit for inactive duty for training for less than a full retirement year.  Appendix B provides for minimum required for a portion of the year of qualifying service for retirement. Appendix C provides for retirement points credit for membership in an active status in the Army reserve for less than a full year. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should be awarded proper service credit and pay for her service during the periods 30 April 2004 through 31 July 2004 and 1 August 2005 through 1 August 2007 because her application for a military education waiver that ultimately resulted in her promotion to LTC was delayed due to no fault of her own.

2.  The evidence of record shows her retirement year was initially established as 14 October through 13 October.  She was assigned to the Retired Reserve based on her non-selection for promotion.  However, she was selected for promotion by the January 2007 SSB and her assignment to the Retired Reserve on 1 May 2004 was or should have been revoked on 1 August 2007, the effective date of her promotion to LTC, thereby granting her de facto status in the USAR Control Group (Reinforcement).

3.  When she was transferred to the Retired Reserve on 1 May 2004, her RY was terminated on that date.  However, she served on active duty from 1 August 2004 through 31 July 2005.  Upon her release from active duty, she was placed back in the Retired Reserve on 1 August 2005.

4.  It is unclear how a new RY of 10 January with an ending date of 9 January was established.  Nevertheless, it appears the applicant was or should have remained in the Retired Reserve until the SSB ordered her promoted to LTC on 1 August 2007 and assigned her to the IRR effective that date.

5.  The applicant was assigned to the Retired Reserve after she had been twice non-selected for promotion in May 2004.  Nevertheless, her failure to earn the minimum 50 retirement points required for a qualifying year during the period of her assignment to the Retired Reserve was a direct result of actions taken by Army officials that were related to her non-selection for promotion and, therefore, should be corrected.  In addition, based on her overall record of service, it is reasonable to presume that had she remained in an active USAR status (and it appears she was assigned to a unit) she would have continued to earn a minimum of 50 retirement points required for a qualifying year.

6.  Therefore, in light of the foregoing, it would be appropriate to credit the applicant with sufficient points for the periods 30 April 2004 through 31 July 2004 and 1 August 2005 through 31 July 2007 (not 1 August 2007, as she has already been reinstated in the IRR effective 1 August 2007) to give her creditable "good" years for retirement and awarding her appropriate pay for service she would have rendered had she not been transferred to the Retired Reserve.

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:

* Revoking Orders C-04-408847, issued by USAHRC-STL on 20 April 2004 and thus ensuring she had no break in service
* Adjusting her Retirement Year (RY) back to show "October 14 to October 13"
* Reallocating her active duty points during the period 1 August 2004 through 31 July 2005 based on the adjusted RY of 14 October to 13 October
* Crediting her with a maximum of 50 qualifying points or appropriate service credit based on Appendixes A, B, and C of Army Regulation 140-185 for the periods 30 April 2004 through 31 July 2004 and 1 August 2005 through 31 July 2007
* Restoration of back pay and allowances for the periods 30 April 2004 through 31 July 2004 and 1 August 2005 through 1 August 2007.



      ___________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)                                         AR20100009544



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (co