BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100018817 


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 revocation of her discharge, reinstatement in the U.S. Army Reserve (USAR), promotion reconsideration to lieutenant colonel by a special selection board (SSB), and that she be retained until she reaches retirement eligibility.  She also requests correction to her years of service.

2.  She states her request is based on the fact her unit did not submit pertinent records to her official military personnel file (OMPF).  She reviewed her records and many are still missing.  Because so many records are missing from her OMPF, she was improperly discharged from an active status.  Further, she was scheduled to complete the Captains Career Course Phase 2 and this was cancelled due to her discharge.  After completion of Phase 2 she planned to immediately enroll in Phase 1 of the intermediate level education.  She was also scheduled to deploy to Iraq on 13 December 2010.

3.  She further states her record of service for good years in incorrect.  She had over 19 good years towards nonregular retirement.  She is missing 2 years of good service that her unit did not process correctly to her records.  She has DA Forms 1380 (Record of Individual Performance of Reserve Duty Training) of other years that were also never processed.  At the time of her discharge she should have been credited with 19 good years and would have earned her 20th good year with 65 points before her discharge date.  She will do whatever the Army wants or needs to return back to the service.


4.  She provides:

* registered nursing license
* anesthetist certificate
* two DA Forms 705 (Army Physical Fitness Test Scorecard)
* 19 DA Forms 1380 (1995 to 2009)
* 2008 and 2009 completion of Advanced Cardiovascular Life Support Program cards
* annual training duties memorandum for record (MFR)
* email correspondence from USAR Medical Command
* 2010 annual administrative letter report
* Captains Career Course enrollment and cancellation verifications
* 2010 letter from Army Human Resources Command (HRC)
* U.S. Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 12 May 2010
* her letter to a Member of Congress

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show she was appointed as a second lieutenant in the USAR Army Nurse Corps effective 29 October 1987.

2.  She provided 19 DA Forms 1380:

* dated 12 December 1995 – shows she earned a total of 4 retirement points for 11 and 12 December 1995
* dated 17 January 1996 – shows she earned a total of 2 retirement points for 16 and 17 January 1996
* dated 11 July 1997 – shows she earned a total of 4 retirement points for 10 and 11 July 1997
* dated 23 October 1997 – shows she earned a total of 4 retirement points for 16 and 23 October 1997
* dated 18 November 1997 – shows she earned a total of 10 retirement points for 12, 13, 14, 17, and 18 November 1997
* dated 2 December 1997 – shows she earned a total of 4 retirement points for 1 and 2 December 1997
* dated 10 February 1998 – shows she earned a total of 4 retirement points for 9 and 10 February 1998
* dated 10 March 1998 – shows she earned a total of 4 retirement points for 9 and 10 March 1998
* dated 23 March 1998 – shows she earned a total of 4 retirement points for 22 and 23 March 1998
* dated 25 June 1998 – shows she earned a total of 8 retirement points for 22, 23, 24, and 25 June 1998
* dated 24 August 1998 – shows she earned a total of 4 retirement points for 23 and 24 August 1998
* dated 1 October 1998 – shows she earned 1 retirement point for continuing education
* dated 30 October 1998 – shows she earned a total of 10 retirement points for 26, 27, 28, 29, and 30 October 1998
* dated 12 December 1998 – shows she earned a total of 10 retirement points for 8, 9, 10, 11, and 12 December 1998
* dated 4 November 1999 – shows she earned a total of 8 retirement points for 1, 2, 3, and 4 November 1999
* dated 30 September 2000 – shows she earned 1 retirement point for continuing education
* dated 27 December 2001 – shows she earned 1 retirement point for completion of her Army physical
* dated 5 August 2007 – shows she earned a total of 2 retirement points for 4 and 5 August 2007
* dated 11 May 2009 – shows she earned 1 retirement point for completion of her Army physical

3.  She was promoted to major effective 11 July 2002.

4.  The HRC Soldier Management System (SMS) database transaction detail section, dated 26 March 2009, stated the applicant's retirement points were updated in the system for drills performed on 10, 11, and 12 April 2006.

5.  The SMS database transaction detail remarks, dated 19 October 2009, state a review of the applicant's records shows she was credited with points for 19, 22, and 23 July 1994.  The review also revealed that she still did not have sufficient points to attain a "good retirement year" for 5 November 1993 through 4 November 1994; she had a total of 48 points for that year.  On 23 October 2009, the applicant was advised that she would need to provide documentation for the entire retirement year from 5 November 1993 through 4 November 1994; i.e., leave and earnings statements or other documentation to recreate the year.

6.  An ARPC Form 249-E, dated 19 January 2011, shows she was credited with:

* 17 years, 4 months, and 28 days of qualifying years for retirement on 1 April 2010
* sufficient points for qualifying years from 5 November 1987 to 4 November 1997, 5 November 2000 to 4 November 2002, 5 November 2004 to 4 November 2009
7.  She was honorably discharged from the USAR effective 1April 2010.

8.  In a letter, dated 1 May 2010, the Chief, Special Actions Branch, Department of the Army Promotions, HRC, St. Louis, advised the applicant that she was considered and not selected for promotion by the 2009 DA Reserve Components Selection Board (RCSB).  That was her second non-selection for promotion and due to her non-selection she was discharged from a Reserve status.  A review of her 2008 and 2009 board files revealed pertinent documents were omitted from the files.  Based on the omitted documents she may be eligible for SSB consideration.

9.  The letter also stated the Assistant Secretary of the Army for Manpower and Reserve Affairs directed that the practice of granting SSB's for "former officers" based on Title 10, U.S. Code, without direction from the Army Board for Correction of Military Records (ABCMR) be discontinued.  If a former officer is selected by an SSB, it is at the discretion of the Secretary of the Army via the ABCMR to determine if the discharge/retirement order should be revoked, the officer returned to an active status, and the officer promoted provided he/she met all other promotion requirements.  The letter also advised the applicant to submit an application to the ABCMR for her SSB request.

10.  She will reach age 60 on 2 August 2020.

11.  Army Regulation 135-155 (Army National Guard and USAR Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) specifies that promotion consideration/reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance that the individual would have been recommended for promotion would have resulted.  The regulation further specifies that only critical elements are a basis for consideration by an SSB based on material error.  Critical elements are military education, officer evaluation reports, and the Silver Star or higher award.

12.  Army Regulation 135-155, paragraph 4-34, specifies that an officer twice non-selected for promotion by a mandatory RCSB must be removed from an active status.  Officers in the grade of major maybe selectively continued in their present grade if recommended by a selective continuation board.  The officer will be discharged or, if eligible and the officer requests, transferred to the Retired Reserve if within 2 years of being eligible to retire.  Continuation may not extend beyond the date on which the officer completes 24 years of commissioned service for majors.

13.  Title 10, U.S. Code, sections 12731 through 12739, authorizes retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

14.  Army Regulation 135-180 (Army National Guard and USAR Qualifying Service for Retired Pay Nonregular Service) specifies that an individual does not need to have a military status at the time of application to be eligible for retired pay, but must have:  (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 8 years of his or her qualifying service as a Reserve Component Soldier.  The requirement to serve the last 8 years in a Reserve Component was since amended to the last 6 years and currently there is no minimum requirement.

DISCUSSION AND CONCLUSIONS:

1.  Based upon review by HRC Department of the Army Promotions Special Actions Branch, the applicant's OMPF contained a material error when she was considered and not selected for promotion to lieutenant colonel by the 2008 and 2009 RCSB's.  Therefore, it would be equitable to show her entire record on her OMPF and that she be granted promotion reconsideration by an SSB under the 2008 and 2009 year criteria.

2.  The evidence of record shows she was separated from the USAR effective 1 April 2010 and she was credited with 17 years, 4 months, and 28 days of qualifying service for retired pay.  Her chronological statement of retirement points shows she did not earn sufficient points for qualifying years from 5 November 1997 to 4 November 2000 and/or from 5 November 2002 to 4 November 2004.  She was advised by HRC in October 2009 to provide appropriate documentation for retirement year 5 November 1993 to 4 November 1994.

3.  On 23 October 2009, she was advised she did not have sufficient points to attain a good retirement year for 5 November 1993 through 4 November 1994 and to provide documentation to HRC to recreate the year.  No evidence shows she provided the requested documentation.

4.  There is no evidence of record and she has not sufficient shown she was not properly credited with correct qualifying years for retirement at the time of her discharge.  Therefore, she is not entitled to correction to her records by crediting her with over 19 years of qualifying service for retirement.

5.  If she is selected for promotion by an SSB and reinstated in an active Reserve status, she would be eligible to attain sufficient retirement points to qualify for retired pay upon reaching age 60.

6.  In view of the foregoing, her records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  __x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends:

	a.  that all Department of the Army records related to this case be corrected by showing the entire record of the individual concerned on her OMPF;

	b.  that following administrative implementation of the foregoing, her records be submitted to duly-constituted SSB's under the 2008 and 2009 year criteria;

	c.  that if selected, her records be further corrected by showing she was promoted to the next higher grade on her date of eligibility as determined by appropriate Departmental officials using the criteria cited, provided she was otherwise qualified and met all other prerequisites for promotion;

	d.  that if selected and the applicant met all prerequisites for promotion, her records be further corrected to show:

		(1)  her discharge is void and of no force or effect,

		(2)  she was credited with qualifying service for Reserve retirement for her respective retirement years from the dates of her now-voided discharge to the date of her return to the active Reserve,

		(3)  that an adequate explanation be placed in her official personnel files to show the gap in her officer evaluation reports from the dates of her now-voided discharge to the date of return to an active Reserve status was not caused by any fault on her part and to ensure that she is not prejudiced thereby in the consideration of any future personnel actions, and

		(4)  that all documents related to her now-voided non-selection for promotion and her discharge be expunged from her official military records; and

	e.  that if not selected duly-constituted SSB's, the applicant be so notified.

2.  The Board further determined 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 correcting her records by crediting her with over 19 years of qualifying service for retirement.



      __________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)                                         AR20100018817



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ABCMR Record of Proceedings (cont)                                         AR20100018817



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