IN THE CASE OF:  

		BOARD DATE:	15 July 2014

		DOCKET NUMBER:  AR20140004741 


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 placement on the Retired List with entitlement to retired pay.

2.  The applicant states that:

	a.  In April 2005, she was misinformed by her reserve unit during her mandatory removal date (MRD) counseling that she would be placed on a retirement list until she reached age 65.  She was given forms to fill out placing her name on the military retirement list or Individual Ready Reserve (IRR).  She signed the form to place her name on the retirement list.

	b.  She was attached to the medical reserve unit in Heidelberg, Germany from 2003-2005.   She worked as a federal civilian from 2003 to 2007 in Wurzburg Hospital until closure.  At age 65 she did not receive an official retirement letter from the military.  She contributed the loss of mail due to a change of duty station to Bamberg.

	c.  She had no knowledge on how to get in touch with an appeal board until she was given information to apply online to this Board.  She was misinformed of her rights to an MRD appeal.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty).


CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 14 April 1945.  She was appointed as a U.S. Army Reserve (USAR) Army Nurse Corps second lieutenant (2LT)O-1 on 11 February 1990.

2.  She entered active duty on 11 March 1990, served two tours in Germany, and was promoted to captain (CPT)/O-3 effective 1 April 1994.

3.  On 16 February 2001, the applicant was notified by U. S. Total Army Personnel Command memorandum that she was to be released from active duty (REFRAD) because she had not been selected for promotion.

4.  On 23 April 2001, orders were issued showing the applicant was to be REFRAD and assigned to the USAR Control Group (Reinforcement) effective 
1 August 2001.  The orders show she was entitled to full separation pay.

5.  The applicant was promoted to Major on 6 January 2003.  She was discharged from the USAR on 30 April 2005, after reaching age 60.

6.  Information in the applicant’s transaction history indicates she submitted a request for an MRD extension in June 2005.  Notwithstanding that it arrived at the U.S. Army Human Resources Command after she was discharged it went before an MRD board for consideration.  On 22 July 2005, her request was not recommended because there was no objective force requirement in her area of concentration. 

7.  In the processing of this case, an advisory opinion was obtained from the Chief, Reserve Component Retired Pay, U.S. Army Human Resources Command (HRC).  The advisory official states that:

	a.  To be eligible for retired pay at age 60, under Title 10, U.S. Code, Sections 12731-12737, a Reserve Soldier or former Reserve Soldier must have completed a minimum of 20 qualifying years of service, the last 8 years of which must have been in a Reserve component.  Service in an inactive reserve component, such as the Retired Reserve, is not creditable for retirement purposes.  Since 1 July 1949, a Reserve Soldier must have earned at least 50 retirement points per year for that service to be creditable for retirement.

	b.  An audit of the applicant's military records shows that she completed 
15 years, 2 months, and 20 days of qualifying service for retirement.  Accordingly, she is not eligible to receive retired pay.

8.  A copy of the advisory opinion was provided to the applicant for comments or a rebuttal.  She did not respond.

9.  Her current Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) shows she completed 15 years, 2 months, and 20 days of qualifying years of service toward non-regular retirement. 

10.  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.  Retired Pay is defined as pay granted Soldiers and former Reserve Components Soldiers under title 10, U.S. Code section 12731, after completion of 20 or more years of qualifying service and upon attaining age 60.  It also states 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; and (2) completed a minimum of 
20 years of qualifying service.  Each Reserve Component Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.

11.  Title 10, U.S. Code, chapter 1407, section 14509 states that each reserve officer in a grade below brigadier general who has not been recommended for promotion to the grade of brigadier general shall, on the last day of the month in which that officer becomes 60 years of age, be separated in accordance with section 14515.

12.  Title 10, U.S. Code, section 14703 states that notwithstanding any provision in chapter 1407 and under regulations prescribed by the Secretary of Defense, the Secretary of the Army may, with the officer’s consent, retain in an active status any reserve officer assigned to the Army Medical Department, including the Army Nurse Corps.  An officer may not be retained in an active status under this section later than the date on which the officer becomes 67 years of age.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided any evidence to support her contention she was misinformed of her retirement possibilities.  Her records show she completed 15 years, 2 months, and 20 days of qualifying service for non-regular retirement. By law, in order to be eligible for retired pay, a Reserve Soldier upon attaining age 60 must have completed a minimum of 20 qualifying years of service.  A qualifying year is defined as a year in which the Reserve Soldier earned at least 50 retirement points.

2.  Although the applicant contends she was informed that she would be placed “on a retirement list” (presumably meaning transferred to the Retired Reserve) until she reached age 65, by law she was required to be released from an active status upon reaching age 60.  

3.  Also by law she would have been entitled to consideration for retention in an active status.  Although her request for an MRD extension was submitted late an MRD board did consider her request.  However, even if it had been timely the board recommended denial because there was no objective force requirement in her area of concentration.  MRD extensions are not an entitlement but for the needs of the Service.

4.  In view of the foregoing there is an insufficient basis for granting the applicant's 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 for correction of the records of the individual concerned.



      _____________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)                                         AR20120017853



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ABCMR Record of Proceedings (cont)                                         AR20140004741



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