IN THE CASE OF:	  

		BOARD DATE:	  17 October 2013

		DOCKET NUMBER:  AR20120015674 


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 reconsideration of numerous and varied corrections of her records in the following manner:

	a.  Void her discharge from the U.S. Army Reserve (USAR), effective 23 April 1996;

	b.  Reinstate her commission in recognition of her original appointment as an indefinite term commissioned officer.

	c.  Issue her a 20-year letter for having completed 15 qualifying years of service under the temporary special retirement qualification authority in accordance with the provisions of Title 10, U.S. Code (10 USC), section 1223/12731a, pertaining to personnel who had acquired 15 qualifying service years, but less than 20 years of retirement service, enabling transfer to the Retired Reserve.

	d.  Transfer her to the Retired Reserve and pay her retroactive non-regular retirement pay beginning on 6 April 1999.

	e.  Pay her Separation Pay applicable to those who are involuntarily removed from an active Reserve status.

	f.  Authorize her access to the Selected Reserve Transition Benefits Program (SRTBP) due to personnel who lose their position as a result of their unit's inactivation, reorganization or relocation.

	g.  Correct all erroneous information in her military records.

2.  The applicant further requests that the Army:

	a.  Provide her copies of the documents in her Army Military Human Resource Record (AMHRR) (formerly known as Official Military Personnel File (OMPF)) to include the DA Form 2B (Personnel Qualification Record), DA Form 4037 (Officer Record Brief (ORB)), and Military Personnel Records Jacket (MPRJ).

	b.  Provide her an explanation of why the 1994 promotion board members did not select her for promotion to lieutenant colonel (LTC).  Also provide her the date records were due to the promotion board staff prior to being provided to the promotion board members for review.

	c.  Have a special selection board (SSB) consider her record for promotion to LTC under the 1994 selection criteria due to the numerous material errors that existed in her records at the time.

	d.  Correct her Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) by:

		(1)  Adding her enlisted service as a cadet from 28 August 1975 through 31 August 1977 to her qualifying retirement year points.

		(2)  Changing the code which erroneously indicates she received inactive retirement points for being "removed from Active Guard/Reserve (AGR) duty by Board Action Reference" to show that she was serving as a drilling member in a Troop Program Unit (TPU) during the period 1 April 1994 through 23 April 1996.

3.  The applicant states:

	a.  She is not aware of having a board remove her from active status as a Ready Reservist prior to 1996.  She finds it inexcusable that the memorandum informing her that she was not authorized to continue in an active status, dated 21 February 1996, was faxed to her unit on 17 April 1996 and not received by her on 20 April 1996; and yet, she was expected to comply with a suspense date of 20 April 1996 as if she had received it in February.  Then, on 23 April 1996, she was discharged from the USAR and the U.S. Army.  With a reversal of the discharge, she could get on with her life and enjoy the benefits that her military career is finally bestowing on her and hers.

	b.  She does not believe her discharge was legitimate, nor was it issued in accordance with the guidance provided in the memorandum pertaining to what would happen to her if she met just one of the conditions.  She specifically contends that she qualified for two of the three conditions given back in April 1996 that would prevent a Soldier from being discharged:

		(1)  Paragraph 2(a) exempted Soldiers who "Are eligible for and request transfer to the Retired Reserve."  She states she qualified for an option offered to her unit's personnel by Headquarters, Department of the Army (HQDA) for personnel who had acquired 15 years or more of qualifying retirement points, could request transfer to the Retired Reserve and receive a 15-year letter which would be treated as receiving a 20-year letter, and the Soldier(s) could begin receiving their retirement pay and other benefits.  She contends that her 2 years of enlisted USAR service, 15 years of qualifying retirement credit points as a commissioned officer, plus the 3 years of her mandatory removal date (MRD)
(6 April 1999) obligation gives her a total of 20 years of qualifying service for retirement.

		(2)  Paragraph 2(b) exempted Soldiers who "Have a service obligation."  She states she qualified for this option because she had an MRD of 6 April 1999 as depicted on her DA Form 2B, Section II (Service Data), number 12, which shows the entry "Date MAND REM:  990406."  

	c.  As a commissioned officer with an indefinite term appointment, she still has an Active Reserve status and should be allowed to receive retirement pay from the obligation date of her MRD of 6 April 1999.

	d.  she was not properly notified to have her records reviewed and updated prior to them being considered by the Reserve Components Selection Board (RCSB) in accordance with Army regulations, public law, Department of Defense Instructions (DODI); and 10 USC.  As a result, she did not have an opportunity to review or be informed about her records being sent to the board.  Only after the board did she receive a memorandum informing her that her records had been presented to board members and that she was considered, but not selected for promotion.  In spite of sending several letters to the National Personnel Records Center (NPRC), Military Personnel Records, she still has not received a call from them.  As a result, she is still unaware of what is in her records or what is not.

4.  The applicant attests that some of the members of her former unit including the unit administrator, supervisor, and others appear to have conspired to get her discharged from the USAR.  She also states she needs answers to an extensive list of questions (the vast majority of which she posed in her previous application to this Board) pertaining to:  the promotion board process, unexplained manual and automated Standard Installation Division Personnel System data entries on various documents within her records, the specific reasons for her nonselection for promotion, how she was reassigned to another unit without requesting to be reassigned, how personnel from other units could be involved in making decisions pertaining to her assignments and career, and how she can obtain a copy of her complete military records.

5.  The applicant provides:

* an appointment memorandum
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) ending on 24 April 1980, 28 February 1983, 29 June 1991, and 2 January 1992
* DD Form 215 (Correction to DD Form 214), dated 2 January 1992
* DA Form 1577 (Authorization for the Issuance of Awards)
* Form W-4 (1994) (Employee's Withholding Allowance Certificate)
* DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters and/or Variable Allowance for Housing)
* Standard Form (SF) 1199A (Direct Deposit Sign Up Form)
* Command and General Staff College (CGSC) Enrollment Notice
* DA Form 2B
* DA Form 2-1 (Personnel Qualification Record - Part II)
* a listing of S-1 Tasks
* ORB
* USAR Summary Point Inquiry
* ARPC Form 249-2-E (Detail Point Listing for Previous Retirement Years)
* a memorandum requesting the delay of separation
* a memorandum, dated 1996, Subject: Second Non-Selection for Promotion
* 1995 notification of promotion status
* a memorandum requesting retention, denial memorandum, and allied documents
* letters written between the applicant and Member(s) of Congress
* a letter from the U.S. Army Reserve Command (USARC), Fort McPherson, GA to her Congressional Representative
* Honorable Discharge Certificate
* Officer Evaluation Reports for the periods 14 April 1994 through 13 April 1995 and 14 April 1995 through 13 April 1996
* Orders 96-114-045 (discharging the applicant from the USAR)
* DA Form 1380 (Record of Individual Performance of Reserve Duty Training)
* multiple reassignment, transfer, and discharge orders

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110002228, on 30 August 2011.

2.  The applicant presents new arguments which were not previously considered by the Board.

3.  The applicant's record shows she was born on 7 April 1946.  On 28 August 1973, she enlisted into the USAR as a cadet in the Reserve Officers' Training Corps (ROTC).  Her record is void of any evidence and she did not provide any evidence showing she was assigned to a Reserve unit and performed Reserve duties while she was attending college and participating in the ROTC program.  She was appointed as a USAR commissioned officer in the rank of second lieutenant and executed an oath of office on 14 January 1977.  Paragraph 2 of her appointment memorandum states "This appointment is for an indefinite period."

4.  She entered active duty on 23 April 1977 and attained the rank of first lieutenant on 23 April 1979.  She was honorably released from active duty, on
24 April 1980, and she was transferred to the USAR Control Group (Reinforcement) to complete her remaining service obligation.

5.  On 6 March 1981, she entered active duty and served as an Administrative/Personnel Systems Management Officer.  She was promoted to captain on 15 March 1982.  She tendered her unqualified resignation on 
7 December 1982.  She was honorably released from active duty on 28 February 1983 and she was transferred to the USAR Control Group (Reinforcement). 

6.  On 15 July 1986, she was assigned to the 377th Adjutant General Battalion, Long Beach, CA, a TPU.  On 31 May 1988, she was promoted to major (MAJ) in the USAR. 

7.  On 1 November 1990, she was ordered to active duty in support of Operations Desert Shield/Storm.  On 29 June 1991, she was honorably released from active duty and transferred to the USAR Control Group (Individual Mobilization Augmentation (IMA)).

8.  On 30 June 1991, she was ordered to active duty in support of Operations Desert Shield/Storm.  On 2 January 1992, she was honorably released from active duty and transferred to the USAR Control Group (IMA). 
9.  On 29 January 1992, she received confirmation of enrollment in the non-resident CGSC course.

10.  She was issued USAR Personnel Center, Orders C-04-415531, dated 12 April 1994, which assigned her to the 6224th U.S. Army Reserve Forces (USARF) School.  The applicant attests that these orders contained an incorrect spelling of the street address and four digits of the zip code were wrong.  She did not provide any evidence in support of this allegation.  Nevertheless, her DA Form 2-1 shows she was assigned to the 6224th USARF School, Phoenix, AZ, on 1 April 1994, with principal duty as the Adjutant (Personnel Officer). 

11.  U.S. Total Army Personnel Command (TAPC), St. Louis, MO, memorandum Subject:  Notification of Promotion Status, dated 5 December 1994, shows the Chief, Office of Promotions, Reserve Components notified the applicant she was considered for promotion to LTC by the 27 September 1994 RCSB, but she was not selected.  She was informed that one of the possible reasons for nonselection may have been that her record, when reviewed by the board, did not reveal that she had completed the military education requirement.  She was advised that if she had evidence showing she had completed the education requirement not later than the date of the board, such evidence should be forwarded through channels to them because she may be eligible for reconsideration by a Department of the Army Standby Advisory Board.  It should be noted that the military education prerequisite is only one aspect that a board considers; therefore, the fact that she may be eligible for reconsideration should not be construed in any way that she would be selected for promotion.  She was further advised that she would be considered again the following year by a new board with other officers who met the criteria for the next zone of consideration; if she was not selected by the next board, she would be subject to removal from an active status in accordance with current regulations.

12.  TAPC, St. Louis, MO, memorandum Subject:  Notification of Promotion Status, dated 15 December 1995, shows the Chief, Office of Promotions, Reserve Components notified the applicant she was considered for promotion to LTC, but she was not selected.  The promotion board results were approved on 3 October 1995.  She was informed that as a result of this second nonselection, she must be separated from the USAR.  She was further informed that her commander would advise her of separation procedures and any options available to her by separate correspondence.

13.  Headquarters, USARC, Fort McPherson, GA, memorandum Subject:  Second Nonselection for Reserve Officer Promotion, dated 11 February 1996, and addressed through her chain of command, notified the applicant that as a result of her second nonselection for promotion, she was no longer authorized to continue in an active drill status effective 20 April 1996.  Therefore, she would be discharged unless she met one of the following conditions:

	a.  Are eligible for and request transfer to the Retired Reserve.

	b.  Have a service obligation.

	c.  Have been credited with 18 or more, but less than 20 years of qualifying service for non-regular retirement as defined in 10 USC, Section 1332.  The Code provides that if she had at least 18 qualifying years, she would have 
3 years to complete 20 years of Federal service.  If she had at least 19 years, she would have 2 years to complete 20 years of Federal service.  

14.  The above memorandum also advised the applicant that unless she provided her election of options, the regulation provides for her removal without her consent.  Should she be eligible for, but fail to request transfer to the Retired Reserve, discharge action would be accomplished under the provisions of Army Regulation 135-175 (Separation of Officers), paragraph 4-4a(16).  She was instructed to ensure that her signed election of options, MPRJ, and any other pertinent documents were submitted to them not later than 20 April 1996.  It is unclear at what stage the applicant was offered these options.  However, it is clear that no election was made on the "Election of Options" statement. 

15.  On 11 March 1996, the USARF School Commandant rendered a memorandum addressed to Commander, TAPC wherein he requested a delay in the applicant's separation until 15 November 1996.  He stated the 6224th was scheduled for inactivation on 15 November 1996 and the applicant's duties and responsibilities were essential to the successful completion of the school's mission. 

16.  On 18 April 1996, the Chief, Office of Promotions, Reserve Components, TAPC, rendered a response to the USARF School Commandant wherein he stated:

* The applicant was considered, but not recommended for promotion by the 1994 and 1995 DA RCSB
* The applicant's retention was not recommended
* Requests for retention must be made by the Soldier, not a third party
* A review of the applicant's records showed she had not completed 50% of CGSC as required for promotion to LTC; therefore, she had no basis for consideration by a DA Promotion Advisory Board

17.  On 23 April 1996, Headquarters, USARC, published Orders 96-114-045 which honorably discharged the applicant from the USAR effective 23 April 1996 in accordance with Army Regulation 135-175.

18.  On 26 April 1996, Headquarters 124th, USARC was informed that the request to retain the applicant in an active duty status was denied.  Under the provisions of 10 USC, Section 1332, an officer may only be retained if he or she has been credited with 18 or more, but less than 20 years of qualifying service.  This command was not authorized to retain the applicant past her drop date of 20 April 1996.

19.  The applicant's record is void of evidence and she did not provide any evidence showing she had a service obligation at the time of discharge.  Her ARPC Form 249-E does not contain a code which indicates the reason for her receiving inactive retirement points was for being "removed from AGR duty by board action reference" during the period 1 April 1994 through 23 April 1996.  There is also no evidence showing she performed any type of qualifying service for retirement which is not reflected on her ARPC Form 249-2-E which shows she completed 15 years of qualifying service as follows:

Beginning Date
Ending Date
Qualifying YY/MM
Total Credible Points
19950114
19960113
1
077
19940114
19950113
1
088
19930114
19940113
0
015
19920114
19930113
0
029
19910114
19920113
1
365
19900114
19910113
1
089
19890114
19900113
1
067
19880114
19890113
0
015
19870114
19880113
1
203
19860114
19870113
0
028
19850114
19860113
1
130
19840114
19850113
1
067
19830114
19840113
1
061
19820114
19830113
1
365
19810114
19820113
1
331
19800114
19810113
1
132
19790114
19800113
1
365
19780114
19790113
1
365
19770114
19780113
1
281
Total

15 years
3,073 points
20.  On 15 September 1997, a personnel staff officer from Headquarters, USARC, rendered a letter in response to an inquiry made by a Member of Congress (MOC) on behalf of the applicant regarding the SRTBP and her promotion within the USAR.  The staff officer informed the MOC that prior to the applicant's separation TAPC convened a DA RCSB to consider officers in the grade of major for promotion.  The board examined the records of each eligible officer in accordance with Army regulatory guidance.  The applicant was considered, but not selected for promotion.  She was notified of her second nonselection for promotion by memorandum on 15 December 1996.  Since she did not meet the criteria set forth for separation other than discharge, i.e., eligible for and request transfer to the Retired Reserve, have a service obligation, or have been credited with 18 or more, but less than 20 years, of qualifying service for retired pay, she was mandatorily discharged from the USAR by TAPC on 23 April 1996.  In regard to the SRTBP, it was authorized by Congress to provide compensation to Soldiers who lose their positions due to unit inactivations, reorganizations, or relocations and could not find positions elsewhere.  Additionally, in accordance with Army regulatory guidance, Soldiers who must be separated for other reasons prior to the effective date of inactivation/reorganization/relocation must be separated for those reasons without the SRTBP benefits intended for downsizing.  Hence, the applicant is not eligible for the SRTBP.  Subsequently, the applicant was ill-advised to initiate a request for reassignment to the Retired Reserve with transition benefits on 4 May 1996, due to her unit's pending inactivation.

21.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve officers.  The regulation, in effect at the time, specifies promotion from MAJ to LTC required completion of a maximum of 7 years in the lower grade.  Any person who fails to be selected for promotion to the rank of LTC twice will not be considered again for promotion.  All officers not qualified for retention will be removed from an active status within 90 days after the selection board submits its results to Headquarters, Department of the Army.  Promotion policy does not provide for the removal of non-selections by an RCSB except when directed by this Board.

22.  Army Regulation 135-175 prescribes the policies and procedures for the discharge of Reserve officers.  This regulation specifies that an officer in the grade of MAJ, who has completed his/her statutory military service obligation, will be discharged for failure to be selected for promotion after a second consideration by an RCSB, with or without the officer's consent.  

23.  Title 10, USC, section 14504 states that a MAJ of the Reserve Active-Status List who has failed selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall be separated not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.  This period was 90 days at the time of her discharge. 

24.  Title 10, USC, sections 12731-12737 authorize retired pay for Reserve Component military service.  To be eligible for retired pay under this law, a Reserve Soldier upon attaining age 60 must have completed a minimum of 
20 qualifying years.  After 1 July 1949, a qualifying year is defined as the reserve Soldier having earned at least 50 retirement points.  

25.  Title 10, USC, section 12731a (temporary special retirement qualification authority) provides for retirement for at least 15 years of service.  For the purposes of section 12731 of this title, the Secretary concerned may:

	a.  (Subsection 1 of the law) During the period described in subsection 
(b), determine to treat a member of the Selected Reserve under the jurisdiction of that Secretary as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member (a), as of October 1, 1991, has completed at least 15, and less than 20, years of service computed under section 12732 of this title; or (b), after that date and before the end of the period described in subsection (b), completes 15 years of service computed under that section; and (subsection 2 of the law), upon the request of the member submitted to the Secretary, transfer the member to the Retired Reserve. 

	b.  The period referred to in subsection (a)(1) is the period beginning on October 23, 1992, and ending on December 31, 2001. 

	c.  Applicability - subject to needs of the service:

		(1)  The Secretary concerned may limit the applicability of subsection
(a) to any category of personnel defined by the Secretary in order to meet a need of the armed force under the jurisdiction of the Secretary to reduce the number of members in certain grades, the number of members who have completed a certain number of years of service, or the number of members who possess certain military skills or are serving in designated competitive categories. 

		(2)  A limitation under paragraph (1) shall be consistent with the purpose set forth in section 4414(a) of the National Defense Authorization Act for Fiscal Year 1993 (Public Law 102–484.

		(3)  Notwithstanding the provisions of section 4415(2) of the Defense Conversion, Reinvestment, and Transition Assistance Act of 1992 (division D of Public Law 102–484; 106 Stat. 2714), the Secretary concerned may, consistent with the other provisions of this section, provide the notification required by section 12731d of this title to a member who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability. 

	d.  Exclusion:  This section does not apply to persons referred to in section 12731c of this title. 

	e.  The authority provided in this section shall be subject to regulations prescribed by the Secretary of Defense and by the Secretary of Homeland Security with respect to the Coast Guard. 

26.  Army All Activities (ALARACT) Message 358/91, dated 20 December 1991, Subject: Voluntary Early Transitions Program with Voluntary Incentives stated that commanders must ensure that Soldiers denied retention by Headquarters, Department of the Army understand the ramification of applying for voluntary separation with an incentive.  It also stated that this program does apply to officers who had an established mandatory separation or retirement date. 

27.  Army Regulation 135-180 (Army National Guard and Army Reserve – Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, indicates that to be eligible for retired pay, an individual does not need to have a military status at the time of application 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.

28.  Department of the Army Circular 635-92-1 outlines the eligibility criteria for separation pay and provides separation pay formulas as authorized by DODI 1332.29 dated 20 June 1991 and other Department of the Army guidance resulting from Public Law 101-510.  The circular also illustrates the various types of separation that are either eligible or ineligible for separation pay.  It states, in pertinent part, that separation pay is authorized for Soldiers serving on active duty on 5 November 1990 who were involuntarily separated prior to completion of obligated service or who were denied continuation of further service.  To be eligible for separation pay and benefits, individuals must have served 6 or more years of active Federal service and had to sign a Department of the Army Form 7154-R (Agreement to Join Ready Reserve) for a period of not less than 3 years.

29.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) defines Army National Guard of the United States and USAR service obligations.  It prescribes policies and procedures governing the various types of service obligations and participation requirements.  All military service members incur a statutory military service obligation (MSO):

	a.  The statutory MSO is incurred on initial entry into the Armed Forces whether by induction, enlistment, or appointment. 

		(1)  On and after 1 June 1984, all Soldiers incurred an 8-year statutory MSO. 

		(2)  Prior to 1 June 1984, most Soldiers incurred a 6-year statutory MSO. 

	b.  The statutory obligation can be terminated by the Army prior to its fulfillment.  Separation due to discharge, dismissal, or being dropped from the rolls of the Army terminates a Soldier's statutory obligation.  The statutory obligation is not terminated however when the Soldier is separated for immediate reentry into the same or another military status.  This includes an officer training program in which the Soldier has military status. 

30.  Army Regulation 135-175 provides, in part, that an obligated officer is an officer who has an obligation incurred by operation of law or by execution of a contractual agreement to serve in a Reserve status for a specified period of time.

31.  Title 10 USC, Section 12203(c) provides appointments of Reserves in commissioned grades are for an indefinite term and are held during the pleasure of the President.  An indefinite term has no specific length, but may be terminated whenever an officer is deemed ineligible for continued service under any provision of policy or statute.

32.  An MRD is established for every service member and it represents the latest date the service member may be retained in an active status.  An MRD is determined by the date the service member is projected to reach either their maximum allowable years of commissioned service, maximum time-in-grade, or maximum age; whichever occurs first.

33.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers.  Table 2-2 shows the military education requirements for promotion.  It also states SSBs may be convened to consider or reconsider commissioned officers for promotion when Headquarters, Department of the Army discovers one or more of the following: an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error, including officers who missed a regularly scheduled board while on the temporary disability list and who have since been placed on the Army Promotion List (APL) (SSB required); the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

34.  Army Regulation 135-155 defines material error as one or more errors of such a nature that in the judgment of the reviewing official (or body) may have caused an individual's nonselection by a promotion selection board.  Had such errors been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

35.  Title 10, US Code, Section 971, states that in computing length of service for any purpose, service as a cadet or midshipmen may not be credited to a commissioned officer of the Army or other service.

36.  The Department of Defense Pay Manual (DODPM), paragraph 10101p, states that service as a cadet or midshipman is creditable in computing basic pay of enlisted members.  In accordance with table 1-1-1 of this manual, service in any of the military academies for cadets and midshipmen who were appointed after 25 June 1956 is not creditable.

37.  Army Regulation 140-185 (Training and Retirement Points Credit and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized.  It also discusses the procedures for recording retirement point credits and training for Reserve Component Soldiers.

	a.  Paragraph 2-1 (Criteria for crediting retirement points) states that the limitations on the number of points which may be credited to a Soldier during a retirement year are a maximum of 365 (366 during leap year) points, a maximum of 15 membership points, and a maximum of 60 points (in effect at the time) for inactive duty training; however, the Annual or Terminal Statement of Retirement Points will report all points earned.

	b.  Paragraph 2-2 (Criteria for earning retirement points) states, in pertinent part, that retirement points may be earned by USAR Soldiers for active duty (AD), or while in an active Reserve status, for active duty for training, initial active duty for training, involuntary active duty for training, annual training, inactive duty training (IDT), Reserve membership, and for other activities specified in this regulation.  For the purposes of this regulation, the types of IDT are as follows:  (1) regularly scheduled unit training, includes unit training assemblies (UTA) and multiple unit training assemblies (MUTA), (2) regularly scheduled training (RST) other than UTA/MUTA, (3) make-up assemblies for missed UTA/MUTA due to annual training, (4) equivalent training in lieu of scheduled UTA/MUTA or RST, (5) additional training assemblies, (6) 2-hour unit training assemblies, and (7) training of individual Soldiers in a non-pay status.

38.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve Component Soldiers.  Paragraph 2-8 defines qualifying service and states, in pertinent part, that a Reserve Component Soldier must earn a minimum of 50 retirement points each RY to have that year credited as qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that:

	a.  her discharge from the USAR should be voided;

	b.  her commission should be reinstated in recognition of her original appointment as an indefinite term officer;

	c.  she should be issued a 20-year letter for having completed 15 qualifying years of service;

	d.  she should be reassigned to the Retired Reserve and paid retroactive non-regular retirement pay beginning 6 April 1999;

	e.  she should be authorized separation pay;

	f.  she should be authorized SRTBP benefits;

	g.  any incorrect information in her records should be corrected;

	h.  she should be provided copies of her AMHRR;

	i.  she should be provided an explanation of why the Promotion Board members did not select her for promotion;

	j.  an SSB should consider her record for promotion to LTC under the 1994 selection criteria due to the numerous material and data errors that existed in her records at the time; and

	k.  her ARPC Form 249E should be corrected by:

		(1)  adding her enlisted service as a cadet in the ROTC program to her qualifying retirement year points; and

		(2)  changing the code which erroneously indicates the reason for her receiving inactive retirement points was for being removed from AGR duty by board action reference to correctly show she was serving as a drilling member in a TPU during the period 1 April 1994 through 23 April 1996.

2.  Implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  Additionally, Military Personnel (MILPER) Messages announce the convening dates of all promotion selection boards with specific instructions for eligible officers to ensure their records are complete and meet the requirements. The messages routinely warn that failure to comply with the instructions in the MILPER Messages will be viewed as lack of due diligence on the officer's part.

3.  In view of the applicant's years of experience as a personnel officer and the fact that she was serving as an Adjutant at the time of her non-selections, she knew or should have known that completion of CGSC and its inclusion in her board file has been a long-standing regulatory requirement for promotion to LTC.
The general requirements and workings of the system are widely known and specific details, such as promotion board dates and promotion zones are widely published in official, quasi-official, and unofficial publications, and in official communications.  She contends that there were various errors in the documents she provides.  Her experience as a personnel officer also should have given her insight into how to properly maintain the information in her records and the numerous avenues within the Army for seeking assistance with having corrections and updates made.  Her failure to maintain her personnel record was clearly the result of a lack of due diligence on her part.

4.  The applicant was non-selected for promotion to LTC twice.  Since she did not meet the criteria set forth for separation by a means other than discharge, i.e., eligible for and request transfer to the Retired Reserve, have a service obligation, or have been credited with 18 or more, but less than 20, years of qualifying service for retired pay, the only option that was available to her was an honorable discharge.  Accordingly, she was mandatorily discharged from the USAR by TAPC on 23 April 1996.  Under the provisions of both law and regulation she was required to be discharged from an active status within 90 days after the selection board submitted its results to HQDA.  The promotion board results were approved on 9 October 1995 and TAPC informed the applicant of her required separation in correspondence dated 15 December 1995.  It appears her removal date of 23 April 1996 should have been earlier than it actually occurred. 

5.  Contrary to the applicant's contention that her chain of command and/or supervisor were trying to discharge her, evidence clearly shows her school commandant submitted a request asking that she be delayed from separation.  

6.  Her ARPC Form 249-E does not contain a code which indicates the reason for her receiving inactive retirement points was for being "removed from AGR duty by board action reference" during the period 1 April 1994 through 23 April 1996.  Her record contains no evidence and she has provided no evidence showing she performed any type of qualifying service for retirement which is not reflected on her ARPC Form 249-2-E.

7.  The applicant is under the false impression that her MRD was established to show the end of her obligated period of service.  An MRD represents the date that a Soldier cannot serve beyond unless an exception is granted by the Secretary of the Army.  Therefore, there is no reason to credit her ARPC 
249-E with an additional 3 years of qualifying service for retirement based upon the time between her separation and her MRD.

8.  The applicant was ineligible for reassignment to the Retired Reserve.  She was not eligible for the issuance of either a 15 or a 20-year letter:

	a.  Although she completed a total of 15 years of qualifying service for non-regular retirement, she was not discharged because of medical reasons or because her unit deactivated.  She was mandatorily discharged, by law, due to not being selected twice for promotion.  She did not qualify for a 15-year letter because of this mandatory separation.

	b.  She did not qualify for a 20-year letter either because she did not and could not complete 20 years of qualifying service.  Since she had a mandatory separation date by reason of being twice not selected for promotion, she could no longer serve in a Reserve Component.  

9.  Having been non-selected for promotion twice to the next higher grade made her ineligible to serve in a Reserve Component which in turn made her ineligible for separation pay. 

10.  The applicant is under the false impression that her original appointment as an indefinite term officer entitled her to remain in the Army until she decided she was ready to separate.  By law, appointments of Reserves in commissioned grades are for an indefinite term and are held during the pleasure of the President.  An indefinite term has no specific length, but may be terminated whenever an officer is deemed ineligible for continued service under any provision of policy or statute.  The applicant was discharged for being non-selected twice for promotion; therefore, her commission was terminated and there is no basis for reinstatement.

11.  The SRTBP was authorized by Congress to provide compensation to Soldiers who lost their positions due to unit inactivation, reorganization, or relocations and could not find positions elsewhere.  The applicant was discharged because she failed to be promoted to the next higher grade and her discharge was a matter of law.  Since her removal was not predicated due to unit inactivation, but rather due to being non-selected twice, she is not eligible for participation in the SRTBP. 

12.  The Reserve Selection Boards are composed of senior officers and noncommissioned officers of demonstrated judgment.  In accordance with the law, these individuals are not permitted to divulge reasons for selection or non-selection.

13.  SSBs are granted under certain circumstances.  The applicant has failed to provide evidence that she met the criteria for consideration by an SSB.  Therefore, there is no justification for having her records considered by an SSB for promotion to LTC under the 1994 selection criteria.

14.  The fact that the applicant was as a cadet in the ROTC program from 28 August 1973 to 14 January 1977 is acknowledged.  However, both policy and statute clearly stipulate that in computing length of service for any purpose, service as a cadet or midshipmen may not be credited to a commissioned officer of the Army or other service.  Her record is void of any evidence and she did not provide any evidence showing she was assigned to a Reserve unit and performed Reserve duties while she was attending college and participating in the ROTC program.  Therefore, she is not entitled to any additional service credit for the time she participated in the ROTC program prior to being commissioned.

15.  The ABCMR is not the custodian of the applicant's records.  However, she may request a complete copy of her AMHRR from the National Personnel Records Center:

	a.  via the internet at this website:  http://www.archives.gov/veterans/military-service-records/;

	b.  by submitting a Standard Form (SF) 180 (Request Pertaining to Military Records) via traditional mail to National Personnel Records Center, 1 Archives Drive, St. Louis, MO  63138; or

	c.  by submitting an SF 180 via traditional mail to this phone number.

16.  In view of the foregoing evidence, the applicant is not entitled to any of the requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20110002228, dated 30 August 2011, or to grant relief for any of the applicant's new requests.



      _______ _  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)                                         AR20120015674



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ABCMR Record of Proceedings (cont)                                         AR20120015674



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