IN THE CASE OF:	  

		BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100014331 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  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.

2.  Counsel states the applicant accepted a commissioned in the U.S. Army at age 42 on the basis of assurances that she would be eligible to accrue 20 years of service and retire.  In accepting the commission, she detrimentally relied upon government misrepresentations that resulted in her being discharged with over 
18 years of service at age 60.

3.  Counsel states that prior to receiving her commission, she was told by a recruiter that doctors, nurses, and lawyers could serve until the age of 67 as long as they could meet physical test requirements.  Her primary concern in commissioning was ensuring that she could obtain a military retirement at age 62.

4.  Counsel states the applicant was passed over for promotion during the fiscal years (FY) 2005 and 2006 Army Medical Department LTC boards.  Counsel contends there were missing documents from her Official Military Personnel File (OMPF) and errors in her Mandatory Removal Date (MRD).  

5.  Counsel provides the following:

	a.  email message from the Army Career and Alumni Program (ACAP)

	b.  letter from the U.S. Army Human Resources Command (USAHRC), dated 24 April 2007

	c.  memorandum dated 25 July 2009

	d.  discharge orders and certificate 

	e.  email from the USAHRC dated 22 May 2007

	f.  request for extension of MRD

	g.  memoranda dated 14 May 2007 

	h.  memorandum dated 14 May 2007

	i.  Chronological Statement of Retirement Points

	j.  USAHRC memorandum dated 19 September 2007

	k.  memorandum for record dated 28 May 2009

	l.  two Officer Evaluation Reports (OER)

	m.  Command and General Staff Officers Course completion information

	n.  letter dated 10 April 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 4 November 1946.  She was appointed a Reserve commissioned officer in the Army Nurse Corps (ANC) as a first lieutenant, on 
20 March 1989.  She was 42 years old at the time of her initial appointment.  She was promoted to captain on 19 March 1993 and to major on 31 August 1999.

2.  Department of the Army Reserve Components Selection Boards convened on 10 May 2005 and 2 May 2006 to consider officers in the applicant's grade for promotion.  She was considered but not selected for promotion by the 2005 and 2006 boards.

3.  She requested promotion reconsideration by an SSB.  On 24 April 2007, her request was denied by USAHRC, Reserve Components Office of Promotions.  She was informed that although her record contained material error when originally seen by the mandatory board, the OER was not significant enough in nature that in conjunction with her permanent records would have made a difference in her promotion status.  

4.  She was discharged from the U.S. Army Reserve (USAR) on 11 May 2007.  There is no evidence showing that she requested to be discharged from the USAR.  A Chronological Statement of Retirement Points shows she completed 18 years, 1 month, and 22 days of qualifying service for retirement purposes.  

5.  On 14 May 2007, she requested an extension to her MRD to reflect the original MRD date of 19 March 2014.  On 19 September 2007, her request was returned without action by USAHRC because of her ineligibility for retention beyond maximum age due to failure to be selected for promotion after the second mandatory consideration board.

6.  In a memorandum dated 28 May 2009, her former commander stated that she completed 59 points for the years 2007 - 2008 and 58 points for the years 2008 - 2009.  The commander also stated that she was given permission to complete the points pending resolution of her MRD and promotion.  He does not indicate how she earned those points (i.e., correspondence courses or some other way).

7.  In connection with the processing of this case, an advisory opinion was obtained from the USAHRC Chief, Transition and Separations.  The opinion noted that the Soldier's record does not reflect she requested to be discharged.  It noted that Title 10 of the U.S. Code, section 12646 stats a Soldier who has attained 18 but less than 20 qualifying years as of the date of the scheduled discharge, "…may not be discharged or transferred from an active status under chapter 573, 1407, or 1409 f this title or chapter 21 of title 14, without his consent…"

8.  The advisory opinion was provided to the applicant for comments and/or rebuttal.  She responded and expressed her concurrence with the contents of the advisory opinion.

9.  Army Regulation 140-10 (Assignments, Attachments, Details and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 7 contains guidance on removal from active status.  It states officers who are twice not selected for promotion to LTC will be removed from active status under removal rule 4 and that exception rule 2 applies.  

10.  Section II of the same regulation provides guidance on exceptions to removal from active status.  Exception number 2 states officers having 18 or 
19 years of qualifying Federal service for retired pay will not be removed without their consent.  An officer meeting this criterion on the date of removal will be retained to complete 20 years of qualifying service.  Retention is authorized until the earlier of the following dates:

	a.  The date on which 20 years of qualifying Federal service for retired pay is completed;

	b.  Three years from required removal date, which applies to officers having 18 but less than 19 years of qualifying service; or

	c.  Two years from required removal date, which applies to officers having at least 19 but less than 20 years of qualifying service.  

11.  Title 10, U.S. Code, section 14506 states, unless retained as provided in section 12646, each Reserve officer who holds the grade of major who has failed of selection to the next higher grade for the second time shall be removed from the Reserve active-status list.

12.  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 less than 19 years of qualifying service, he may not be discharged or transferred from an active status before the earlier of (1) the date on which he is entitled to be credited with 20 years of qualifying service or (2) third anniversary of the date on which he otherwise would be discharged or transferred from an active status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request and contentions have been carefully considered.
2.  At the time of entry into the USAR, she would have been required to sign a waiver to acknowledge she understood she would receive a mandatory separation from the USAR at age 60, that she would not have completed the required 20 years of service to qualify for retirement, and that an extension was required to serve past her MRD.  The acknowledgement is not included in the available record.  However, Government regularity is presumed in this case.

3.  Evidence shows that at the time of her discharge, she had completed 
18 years, 1 month, and 22 days of qualifying service for retirement purposes.  The governing regulation provides that officers having 18 but less than 19 years of qualifying service will be retained for three years from the required removal date.

4.  Having completed 18 but less than 20 years of qualifying service for retired pay, she should not have been separated without the approval of the Secretary of the Army or his designated representative.  Therefore, without showing she completed 2 additional years of qualifying service, she would not be entitled to receipt of a nonregular retirement at age 60.  It seems unjust to separate a Soldier who has served her country honorably for over 18 years.

5.  Evidence also shows that she completed 59 points for the years 2007 - 2008 and 58 points for the years 2008 - 2009.  However, as there is no indication as to how she earned those points, at this time it would be appropriate to show they were earned as correspondence points and membership points.

6.  In view of the above, the applicant's records should be corrected to show her MRD was extended to 19 March 2009 and her Chronological Statement of Retirement Points should be corrected by adding 59 points to the Retirement Ending Year (RYE) 19 March 2008 and 58 points to the RYE 19 March 2009 and to show an addition two qualifying years for a non-regular retirement, for a total of 20 qualifying years. 

7.  The applicant turned age 60 on 4 November 2006 and, based on the above correction, would have been eligible to receive a notification of eligibility for retired pay (her 20-year letter) on 19 March 2009.  Her records should be further corrected by showing she was eligible for a Reserve retirement and applied retired pay to be effective 20 March 2009

8.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact her nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

9.  There is insufficient evidence to show the applicant should be reinstatement on active duty, as there is no evidence to show she qualified for an active duty retirement.  Award of constructive service credit would not be appropriate, as the relief outlined above is actual service credit.

10.  The applicant's request for consideration for LTC by an SSB has merit.  Since her records are being corrected to show she was retained in an active status for two additional years, if she met the criteria for promotion consideration during those two years she should be considered by an SSB and, if selected, promoted.

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.  voiding her 11 May 2007 discharge;

	b.  showing her MRD was extended to 19 March 2009;

	c.  correcting her Chronological Statement of Retirement Points to show she completed 59 points in RYE 19 March 2008 and 58 points in RYE 19 March 2009 (15 membership points for each RYE and the remaining points for each RYE correspondence course points), giving her two additional qualifying years for a non-regular retirement; 

	d.  if eligible during the period of her MRD extension from 11 May 2007 to    19 March 2009, sending her records to an SSB for promotion consideration to LTC and, if selected and otherwise eligible, promoting her to LTC with the appropriate date of rank and effective date; or, if not selected, so notifying her; and

	e.  transferring her to the Retired List effective 20 March 2009 with all back retired pay due as a result of this correction.

2.  The applicant should be provided information concerning her rights, options, and procedures for applying for benefits including the Survivor Benefits Plan.

3.  The Board further determined that the evidence presented was 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 reinstating her on active duty or awarding her constructive service credit.  



      ____________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)                                         AR20100014331





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ABCMR Record of Proceedings (cont)                                         AR20100014331



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