IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100014045 


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 restoration of her rank to lieutenant colonel (LTC) on the Retired List based upon her highest grade held while serving on active duty.

2.  She states she requested a waiver to retain her rank of LTC upon her retirement, but her request was not processed in timely manner.  She adds her request received full endorsements all the way to the Assistant Secretary of the Army (ASA), Manpower and Reserve Affairs (M&RA).  

3.  She provides the following:

* Memorandum, Subject:  Voluntary Retirement, dated 1 December 2008
* Memorandum, Subject:  Waiver Request to Retain Rank of LTC upon Retirement, dated 1 December 2008
* HQDA Forms 5 (Army Staffing Form)
* Memorandum, Subject:  Waiver Request to Retain Rank of LTC, dated      10 September 2009
* ASA (M&RA) Letter, dated 1 February 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Memorandum, Subject:  [Applicant's] Time in Grade (TIG) Waiver Request Timeline, dated 5 April 2010
* Numerous e-mail messages




CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the United States Army Reserve (USAR) as a second lieutenant on 10 May 1987.  She was promoted to LTC effective 
7 December 2006.

2.  On 1 December 2008, she voluntarily requested retirement with a retirement date of 31 August 2009.  She requested a waiver of the processing timeline cited in Army Regulation 600-8-24 (Officer Transfers and Discharges) due to waiting on final approval from Human Resources Command (HRC) for her dual military spouse's retirement request.  She offered his request for retirement was approved for 1 July 2009.  She said she understood by submitting her request for voluntary retirement within 9 months of the start of her transition leave, the delay shortened the processing time and may preclude retirement on the requested date. 

3.  She added that as of her requested date she would have 71 days of accrued leave and planned on taking transition leave and 20 days permissive temporary duty (PTDY).  She also stated she understood the provision of the regulation pertaining to her retired grade.  Considering those provisions and after reviewing her records, she offered she would be 97 days short of meeting her 3-year time in grade requirement.  She said she understood that Headquarters Department of the Army would contact her if her waiver was not approved before processing her retirement packet.

4.  On 1 December 2008, the applicant requested a waiver to retain her rank as LTC upon retirement.  She offered she was requesting a retirement date of 
1 September 2009 in order to transition and relocate in conjunction with her dual military husband.  She added her request was to ensure her two sons were established prior to starting their new school.  She explained her youngest son was enrolled in the Exceptional Family Membership Program (EFMP) and had difficulties with transitions.  Therefore, it was essential for them to transition as a family over the summer between school terms to allow the children time to get established.  

5.  The Army Staffing Form, dated 6 February 2009, shows her requests for retirement and to retain her rank of LTC upon retirement were staffed through her chain of command.  Additionally, this form shows her chain of command initialed the form acknowledging receipt and/or recommending approval. 



6.  E-mail correspondence from the applicant to the Chief, Personnel Actions Division (PAD) and Chief, Human Resources Branch, dated from 26 March 2009 through 1 April 2009, addressed her concerns about retirement and retaining her rank of LTC upon retirement.  Synopses of the e-mails are as follows:

   a.  26 March 2009, she requested delay in the processing of her retirement packet and HRC St. Louis (STL) recommended changing her transition leave plans.  

	b.  30 March 2009, Chief, PAD noted the applicant said she did not want her retirement processed until her grade determination waiver was completed.  The Chief, PAD said she did not know how long it would take to get a determination.  She asked the applicant to consider taking all her leave as ordinary leave/PTDY and reporting to the transition point the day prior to retirement date (31 August 2009). 
 
   c.  30 March 2009, she responded and explained spouse and she were dual military and wanted to retire together.  They had coordinated retirement ceremony, household goods (HHGs) pick up, etc. and needed to ensure their youngest son was prepositioned and ready for school.

   d.  1 April 2009, she decided to proceed with the retirement packet to give them the most time and hopefully the rank situation would be completed in 30 to 40 days.

7.  E-mail from the Chief, PAD, dated 29 June 2009, to the applicant stated the approval authority for her request to retain her rank of LTC was the Secretary of the Army.  She said the document must be reviewed by both The Judge Advocate General and Office of General Counsel.  Between the two legal reviews, it may take up to 45 days before the Secretary of the Army received the documents for final determination.  

8.  The Army Staffing Form, dated 14 August 2009, shows she requested the ASA (M&RA's) signature on her request to retain her rank of LTC upon her retirement.  However, the staffing agencies, with the exception of HRC-STL and the Office of the Judge Advocate General, did not initial this form until after she was separated from the Army.

9.  Orders C-04-907493, dated 13 April 2009, show she was released from her attached unit and reattached to the separation transfer point with a report date of 29 June 2009.  She was scheduled to separate from the USAR Active Guard Reserve in the rank of major (MAJ), effective 31 August 2009.  
10.  Her DD Form 214 shows she was honorably retired on 31 August 2009 with 21 years and 11 months of active service.  This document shows her rank, at the time of retirement, as LTC.  However, in item 18 (Remarks), it shows her retired list grade as MAJ.

11.  On 10 September 2009 and 8 October 2009, her previous supervisor recommended approval on her waiver request to retain the rank of LTC.  He said, in both letters, her son was diagnosed with Asperger's Disorder, Attention Deficit Hyper Activity Disorder (combined type) Disruptive Behavior Disorder, Phonological Disorder, and Separation Anxiety Disorder and was enrolled in the EFMP.  He offered in an effort to provide stability for her son, she and her spouse coordinated their retirement dates.  Her spouse's retirement date was effective on 1 July 2009 and her retirement date was not until 1 September 2009.  Additionally, he stated in his memorandum, dated 10 September 2009, that she was on transition leave and had moved to her retirement location with her family.

12.  On 1 February 2010, the ASA (M&RA) responded to her request for voluntary retirement with a TIG waiver to retire at the grade of LTC.  He said his office received her request on 24 November 2009 and considered her request, but he was advised he was without authority to take action as final administrative action had been taken.  He stated under current regulations, officer grade determinations are accomplished at the time of retirement or disability separation and the officer's grade is fixed at that time.  He added a retirement that is administratively final cannot be reopened except in the case of fraud, substantial new evidence, mistake of law, or mathematical miscalculations.  He noted her request, which received the full support of her chain of command, was not timely processed for the final decision and that a favorable outcome may have been provided had it reached his office in a reasonable period of time prior to her official retirement.

13.  In a memorandum for record, dated 5 April 2010, her previous supervisor submitted a timeline of her request for a TIG waiver.  He provides the following:

* 1 April 2009, her retirement packet and TIG waiver received by HRC-STL
* June 2009, TIG waiver submitted to HRC - Alexandria (HRC-A)
* June 2009 to October 2009, TIG waiver staffed at HRC-STL and HRC-A
* 12 November 2009, TIG waiver packet submitted to ASA (M&RA) 

14.  Army Regulation 600-8-24, chapter 6, provides guidelines for the officer retirement program.  Paragraph 6-19 states that requests for voluntary retirement will be considered on an individual basis.  Requests will be prepared and forwarded to the appropriate authority not earlier than 12 months before the retirement date or no later than 9 months before the requested retirement date or beginning date of transition leave, whichever is the earliest.  Requests may be submitted (with justification) later than 9 months, in pertinent part, when an officer accepts by means of a signed statement that a delay in submitting the request shortens the processing time and may preclude retirement on the requested date. 

15.  Army Regulation 600-8-24 states a commissioned officer must serve on active duty 3 years in grade to retire in rank above major and below lieutenant general.  However, the Secretary of Defense has authorized the Secretary of the Army to waive this requirement in individual cases involving extreme hardship or exceptional or unusual circumstances (10 USC 1370(a)(2)).

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was a senior commissioned officer who had served on active duty for more than 21 years.  Therefore, she was well aware of the active duty service obligation requirement to complete 3 years TIG to retain the rank of LTC.  

2.  Evidence of record further shows she submitted her request for retirement and a TIG waiver in April 2009 with a requested retirement date of 1 September 2009.  Additionally, she requested 71 days transition leave and 20 days PTDY.    Even under the best of circumstances and assuming that her packet was processed through the appropriate channels without glitches, two months is not sufficient lead time to ensure that she would receive a response on her request prior to the beginning of her transition leave and PTDY.

3.  Additionally, she was advised on several occasions to adjust her leave and/or retirement date to allow sufficient time to receive a response on her request.  She was also informed that there were two legal reviews required and it could take up to 45 days for this process prior to her request being forwarded to the ASA (M&RA) for consideration.  However, she was adamant that she could not change her date due to her prior plans.  

4.  It is unfortunate her son was enrolled in the EFMP and has problems transitioning.  However, she did not complete the TIG requirement to be authorized the entitlements and compensation commensurate with the grade of LTC.  Based on the evidence provided, there is no justifiable reason, other than personal reasons to retire 97 days prior to completing a promotion obligation.  Therefore, she should not reap the same benefits as those who endure whatever hardships that may arise to complete their active duty service obligation for retention of their grade.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100014045





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100014045



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1