BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20100023650 


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 retroactive waiver for maximum age that would authorize her to remain in the U.S. Army Reserve (USAR) beyond age 60.

2.  The applicant states she received mobilization orders to report to Germany on 1 January 2010 for 365 days.  She reached 60 years of age on 11 January 2010. 
No one told her during inprocessing that she needed a waiver and the USAR did not initiate a waiver to retain her beyond age 60 at the time they placed her on mobilization orders.

3.  The applicant provides:

* email requesting assistance/advice for exception to policy
* mobilization orders
* deployment/temporary change of station (TCS) orders
* email exchange regarding her release from active duty
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Retirement orders

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 11 January 1950.

2.  Having prior service in the Army National Guard, she enlisted in the USAR in the rank/grade of sergeant first class/E-7 on 21 December 2002 and held military occupational specialty 68W (Health Care Specialist).

3.  On 7 July 2004, the U.S. Army Human Resources Command (HRC), St. Louis, MO, issued her a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter informed her that she had completed the required years of service and would be entitled to retired pay upon application at age 60.

4.  She was ordered to active duty in support of Operation Enduring Freedom from 26 August 2004 through 25 August 2007 during which period she was promoted to master sergeant (MSG)/E-8 on 1 September 2005.

5.  She again was ordered to active duty for a contingency operation-active duty for operational support from 11 December 2007 through 3 December 2009 during which period she executed an indefinite reenlistment in the USAR on 2 October 2008.

6.  On 15 October 2009, the 2291st Medical Hospital (1,000 Bed), El Paso, TX, published Orders 09-288-0001 ordering her to active duty as a member of her Reserve Component unit on 11 December 2009 for a period of 365 days in mobilization for Operation Enduring Freedom and assignment to Fort Benning, Georgia, on 14 December 2009.

7.  On 28 December 2009, Headquarters, U.S. Army Maneuver Center of Excellence, Fort Benning, GA, published Orders BN-362-0003 ordering her deployment in a TCS status to Landstuhl Hospital, Germany, on 1 January 2010.

8.  She reached 60 years of age on 11 January 2010.

9.  On 21 August 2010, an official of the USAR Medical Command notified her by email that she must be released from active duty immediately in accordance with Title 10, U.S. Code, unless she had an approved exception/waiver to be retained beyond age 60.

10.  On 27 August 2010, an official of the USAR Command (USARC), Fort McPherson, GA, notified the applicant by email that she would be reassigned to the Retired Reserve for maximum age effective 11 January 2010, her 60th birthday, in accordance with Title 10, U.S. Code, section 12108.  She was further notified that:

* her active duty orders were not an authorization to remain on active duty beyond age 60
* if she were on active duty at the time, she would be required to be released immediately
* any duty performed and pay/entitlements received after the effective date of her reassignment to the Retired Reserve would be subject to recoupment

11.  She was honorably released from active duty on 31 October 2010.

12.  On 8 November 2010, HRC published Orders P11-929511 placing her on the Retired List in her rank/grade of MSG/E-8 effective 11 January 2010, her 60th birthday.

13.  An advisory opinion was obtained from the USARC, Fort McPherson, GA, in the processing of this case.  An official recommended disapproval of the applicant's request and stated the applicant should have applied for an age waiver instead of retired pay if she wanted to continue her service.  She was not entitled to receive retired pay and continue to perform duty in an active Reserve status.  The official added that:

	a.  The applicant submitted an application for retired pay which resulted in HRC issuing her orders on 8 November 2010 placing her on the Retired List  effective 11 January 2010.  Retirement orders are only issued upon receipt of a Soldier's application.  A copy of the orders is sent to the Soldier, but not to the unit.  It is the Soldier's responsibility to provide the unit with a copy.  Only then can the unit request the Soldier's reassignment to the Retired Reserve.  The applicant did not notify her chain of command or unit upon receipt of the orders.

	b.  Placing her on the Retired List did not remove her from an active Reserve status.  Removal from an active status occurs only when the Soldier is transferred to the Retired Reserve.  Since she did not provide her retired orders, she was never assigned to the Retired Reserve and remained in an active status. 
Consequently, she was mobilized and reported to the mobilization station.

	c.  Upon discovery, she and her chain of command were notified in August 2010 of her need to be released from active duty.  However, no corrective action was taken and she remained in an active status resulting in a debt.  She collected active duty pay which was recouped when she began collecting retired pay in January 2011.

	d.  Only when USARC published orders placing her on the Retired List did she or her chain of command take action by submitting a request for a waiver to remain on active duty beyond age 60 to the Army Board of Correction of Military Records.

	e.  Based on her pay records at the Defense Finance and Accounting Service, she received her first retirement check on 6 January 2011, retroactive to her 60th birthday.  Consequently, she received full time active duty pay and retirement pay for the period 11 January 2010 through 31 October 2010.

14.  The applicant submitted a rebuttal on 26 July 2011 wherein she stated:

* she did not initiate the retirement action – it came from HRC
* she did not know her mobilization orders were in error
* when she was ordered to active duty, she abided with those orders
* she was not notified of the need to be released from active duty until August 2010 – some 8 months after her deployment
* she informed her chain of command who attempted to request an age waiver for her, but they were told it was too late
* she did not receive her release orders until 29 October 2010
* she never knew she needed an age waiver
* it is unclear how HRC could backdate her retirement order, but not grant her a retroactive age waiver
* she gave 100 percent to her country and the Army – she complied with her orders and she did what she was told to do

15.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) prescribes policies and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve Soldiers.  Chapter 7 provides for removal from an active status.  Paragraph 7-3 addresses rule 2 (Removal for Maximum Age) and states Soldiers not sooner removed for another reason will be removed when they reach maximum age.  The removal date will be the last day of the month in which they reach age 60 for enlisted Soldiers.  This regulation provides for and authorizes numbered exceptions to specific reasons for removal from an active status.  Exceptions to removal rule 2 are numbered 1 (Specific Rules for Warrant Officers), 8 (General Officers), and 15 (Military Technicians – Officers).

DISCUSSION AND CONCLUSIONS:

1.  The applicant received mobilization orders in November 2009 directing her to proceed in a TCS status to Germany on 1 January 2010.  She reached age 60 on 11 January 2010.  When the issue was raised in August 2010, she was subsequently released from active duty in October 2010.  She was placed on Retired List effective on her 60th birthday.

2.  The three main issues in her case are:

* retirement versus mobilization
* active duty pay versus non-regular retirement pay
* Army error versus Soldier error

3.  The applicant submitted her retirement application prior to being mobilized.  Her 60th birthday was not a surprise.  She knew or should have known the mobilization orders were in error.  It is unclear why she did not raise any issues with her chain of command regarding her mobilization.  It is equally unclear why the Army issued her mobilization orders in the first place.

4.  Once she was mobilized, she began receiving active duty pay and benefits.  She did not initially receive non-regular retirement benefits on her 60th birthday because her retirement order was not published until after she had demobilized, albeit effective her 60th birthday.  Again, it is unclear why the Army did not issue her retirement orders until after her demobilization.  Nevertheless, once she started collecting non-regular retirement, all active duty pay she received during mobilization was recouped.

5.  It appears both the applicant and the Army were equally derelict.  By issuing mobilization orders, the Army erred in the management of its Soldiers.  By not mentioning her 60th birthday and retirement, the applicant contributed to the problem.

6.  The applicant never applied for an age waiver and there is no stipulation in the regulation to authorize her an "age waiver" that would retain her beyond age 60.  Additionally, she cannot receive both non-regular retirement and active duty pay for the same period.

7.  The applicant should be granted an age waiver as an exception to policy.  Additionally, the applicant performed active duty in connection with her mobilization from 11 January 2010 through 31 October 2010.  As a matter of equity, she should be able to keep the active duty pay and forfeit the non-regular pay retirement for this period only and her normal non-regular pay retirement benefits should begin on 1 November 2010.


BOARD VOTE:

___x____  ___x____  __x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

* showing the applicant was granted an age waiver from 11 January 2010 (her 60th birthday) to 31 October 2010 (date she was released from active duty)
* repaying her full active duty pay and allowances during the period 11 January 2010 through 31 October 2010
* recouping any and all non-regular retirement pay paid to her during the period 11 January 2010 through 31 October 2010
* amending the effective date of her non-regular retirement to 1 November 2010 and starting her non-regular retirement pay effective that date



      ___________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)                                         AR20100023650



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ABCMR Record of Proceedings (cont)                                         AR20100023650



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