IN THE CASE OF:	  

		BOARD DATE:	  22 August 2013

		DOCKET NUMBER:  AR20120022573 


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 correction of her military records to show she completed 20 years of service for a Reserve Component (RC) retirement.

2.  The applicant states:

	a.  she reached her mandatory removal date (MRD) and had been passed over for promotion to lieutenant colonel.  

	b.  she was in the Nurse Corps and willing to complete 20 years of service and retire.
	
   c.  she failed to appeal her MRD.
   
   d.  she is in the process of getting and furnishing documentation of continuing education and civilian education while she served for re-computation of retirement points.  She has 1392 points.
   
   e.  she served from 1987 to 2009 and would like consideration for the ability to complete her career.	 

	f.  she would also like consideration for retirement with service already completed.
  
3.  The applicant provides no additional documentary evidence.

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.  The applicant was born on 16 January 1949.  She was appointed as a second lieutenant in the U.S. Army Reserve (USAR), Nurse Corps, on 16 May 1987.  She was promoted to major effective 25 July 2001.

3.  Orders D-05-910514, issued by the U.S. Army Human Resources Command (HRC), St. Louis, dated 21 May 2009, honorably discharged the applicant from the USAR effective 15 May 2009.

4.  There is no evidence which shows she completed 20 years of qualifying service.

5.  Her ARPC Form 249-E (Chronological Statement of Retirement Points), dated 8 January 2013, shows she completed 17 qualifying years for retired pay.  

6.  In the processing of this case, on 24 January 2013, an advisory opinion was obtained from the Chief, Retired Pay Branch, U.S. Army HRC, Fort Knox, KY.  The advisory official states:

	a.  Sections 12731-12737 of Title 10, U.S. Code, authorized retired pay for Reserve Component military service.  To be eligible for retired pay under this law, a Reserve Soldier of former Reserve Soldier upon attaining 60 years of age must have completed a minimum of 20 qualifying years of service.  After 1 July 1949, a qualifying year is one in which the Reserve Soldier or former Reserve Soldier earned at least 50 retirement points.  The law authorizing retired pay based on service in the Reserve Component does not authorize this pay until all requirements have been fulfilled.  The MRD is set by law and since the applicant is past age 60, her MRD cannot be extended or reinstated, unless by the Secretary of the Army.

	b.  the applicant's retirement points and qualifying service time have been adjusted.  She is credited with 18 years of qualifying time and 1476 total points.  HRC provided an ARPC Form 249-E, dated 24 January 2013, which shows she completed 18 qualifying years for retired pay.

7.  On 7 February 2013, the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  She did not respond.

8.  Army Regulation 135-175 (Separation of Officers) prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the
Army.  Paragraph 4-4 contains guidance on removal from an active status and states that an officer in the rank of first lieutenant, captain or major will be discharged for failure to be selected for promotion after second consideration.

9.  Army Regulation 135-155 Promotion of Commissioned Officers and Warrant Officers Other Than General Officers ) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the (USAR.  Paragraph 4-33 outlines actions resulting from nonselection.  It states that a major on the Reserve Active Status List (RASL) who has failed of selection for promotion to lieutenant colonel a second time and whose name is not on a list of officers recommended for promotion to lieutenant colonel, will be separated unless the officer has a remaining service obligation or can be credited with 18 or more but less than 20 years of qualifying service for retired pay.  

10.  Title 10, U.S. Code, section 12646 (Commissioned officers retention of after completing 18 or more but less than 20 years of service) contains the legal authority to retain officers who have completed 18 or more but less than 20 years of service on the date prescribed for the discharge or transfer from an active status.  It states if on the date prescribed for the discharge or transfer from an active status of a reserve commissioned officer he/she is entitled to be credited with at least 18, but less than 19, years of service, he/she may not be discharged or transferred from an active status without his/her consent before the earlier of the following dates:

	a.  the date on which he/she is entitled to be credited with 20 years of service

	b.  the third anniversary of the date on which he would otherwise be discharged or transferred from an active status.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request has been carefully considered and found to have merit.  The evidence of record confirms she had actually completed
18 years of qualifying service for retirement on the date prescribed for her discharge, as confirmed by her ARPC Form 249-E, dated 24 January 2013.  Therefore, she should not have been involuntarily discharged without her consent.

2.  In view of the foregoing, it would be appropriate to void the applicant's 
21 May 2009 discharge from the USAR and to correct her record to show she was retained in an active status until the date on which she is entitled to be credited with 20 years of service, on retirement year ending 15 May 2011.

3.  In addition, it would also be appropriate to award her retirement points 
(15 membership, 15 active duty, and 20 inactive duty) for each of those additional retirement years.  

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.  voiding her 21 May 2009 discharge from the USAR and showing she was retained until retirement year ending 15 May 2011;

	b.  showing she earned 15 membership points, 15 active duty points, and 
20 inactive duty points during retirement years ending 15 May 2010 and 15 May 2011 and paying her for these active duty and inactive duty points; and



	c.  showing she was honorably transferred to the Retired Reserve effective 
16 May 2011 and entitled to retired pay at age 60.



      _______ _ 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)                                         AR20120022573





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ABCMR Record of Proceedings (cont)                                         AR20120022573



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