BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120003050 


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.  In a 2009 application to the Board, the applicant requested constructive service credit for retirement years lost between 2000 and 2005.  

2.  The applicant stated that as a result of her unit inactivating in 1999 and the failure to properly reassign her to another Troop Program Unit (TPU) in 1999, as should have occurred, she was unjustly denied the opportunity to earn good retirement years during the period in question.  

3.  The applicant provided the documents listed in item 9 (In support of this application I submit as evidence) of her application (DD Form 149) in support of her request.  This 2009 case was administratively closed.

4.  This case has been reopened and will be considered by the Board based on the request of the Army Reserve (AR), Medical Command (MEDCOM), U.S. Army Reserve Command (USARC) based on an advisory opinion provided in 2010 by USARC that was never considered during the original processing of the case.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 19 May 1988, the applicant was appointed a first lieutenant in the Army Nurse Corps (ANC) of the USAR.  She was promoted to captain on 15 May 1991, and to major on 27 May 1998.  

3.  On 17 April 1999, the applicant was transferred from her TPU (Detachment 2, 120th U.S. Army Hospital (USAH), Jackson, MS) to the USAR Control Group, Individual Ready Reserve (IRR), and on 3 March 2000, she was erroneously discharged.  On 19 April 2002, the discharge order was revoked.  

4.  On 26 September 2005, the applicant was transferred from the IRR to a TPU (Detachment 2, 1207th USAH, Jackson, MS).  

5.  An ARPC Form 249-E (Chronological Statement of Retirement Points) shows the applicant completed 17 years, 6 months, and 7 days of qualifying service for retirement between 19 May 1988 and 25 November 2011.  It shows no earned points or qualifying years for retirement for the retirement years ending in 2001, 2002, and 2003.  This document also confirms the applicant’s birth date is         22 July 1951.  

6.  On 10 June 2009, the applicant originally applied to this Board requesting constructive service credit for the years between 2000 and 2005.  Her application was administratively closed without prejudice on 22 December 2009 based on her failure to exhaust all administrative remedies.  An advisory opinion provided by USARC, dated 13 January 2010, was received by the ABCMR after the case had been administratively closed.  She resubmitted her application and it was again administratively closed without prejudice based on her failure to exhaust all administrative remedies based on her not having pursued administrative correction through the U.S. Army Human Resources Command.  

7.  On 15 February 2012, the Office of the Army Reserve, MEDCOM, USARC, requested the applicant’s case be reopened based on her recent mandatory discharge for age with 17 years of qualifying service for retirement, and that the original recommendation provided in the 2010 USARC advisory opinion be considered by the Board.  The 2010 USARC advisory opinion from the Deputy Chief of Staff, G-1, while indicating there was no evidence of record to substantiate the applicant’s claims that she was not properly assigned to a TPU when her original TPU was inactivated in 1999, did confirm the applicant was erroneously discharged from the USAR on 3 March 2000, and the order was not revoked until 19 April 2002.  As a result, the applicant was unable to participate and earn retirement points during this period.   As a result, USARC supported awarding the applicant 50 retirement points for the retirement years 2000-2001, 2001-2002, and 2002-2003.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to be provided constructive service credit for all lost time has been carefully considered and found to have merit.  

2.  As confirmed by the 2010 USARC advisory opinion, the applicant was unjustly denied the opportunity to earn retirement points during the retirement years ending on 2001, 2002, and 2003 based on her erroneous discharge.  Therefore, it would be appropriate to correct her record to award 50 points for each of these years and to show she completed 20 years, 6 months, and 7 days of qualifying service for retirement.  

3.  The record further shows the applicant turned age 60 on 22 July 2011.  As a result, it would also be appropriate to void the applicant’s 2011 discharge and to instead show she was placed on the Retired List on that date and to provide her all back retirement pay due as a result.

4.  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.

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:

   a.  showing she earned 50 points (15 membership and 35 inactive duty training) for each of the retirement years ending in 2001, 2002, and 2003 and had a total of 20 years, 6 months, and 7 days of qualifying service for retired pay as of the date of her 2011 USAR discharge; 
   
   c.  voiding her 2011 discharge from the USAR and showing instead that     she applied for retired pay and was placed on the Retired List on that date       (25 November 2011); and 
   
   d.  providing her all back pay and allowances and retired pay due as a result of the above corrections.  



      _______ _   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)                                         AR20120003050



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ABCMR Record of Proceedings (cont)                                         AR20120003050


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