BOARD DATE: 4 June 2015
DOCKET NUMBER: AR20140018355
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:
* Reappointment in the U.S. Army Reserve (USAR) or credit for 20 qualifying years of service and issuance of a 20-Year Letter
* Payment for 48 inactive duty training (IDT) and 15 days of annual training (AT)
2. The applicant states:
* she was discharged on 23 April 2009 and had completed 18 qualifying years according to her AHRC Form 249-E (Chronological Statement of Retirement Points)
* according to law and regulations, she is entitled to the requested relief; she has been working with multiple individuals in an effort to resolve this issue
3. The applicant provides:
* AHRC Form 249-E, dated 27 May, 18 September, 14 November, and 25 November 2014
* Correspondence with the U.S. Army Human Resources Command (HRC)
* Copies of certified mail receipts
* Correspondence with the Army Review Boards Agency
* Discharge orders
* Officer Evaluation Reports (OER) for the rating period 1 February 2008 through 31 January 2009 and 15 March 1996 through 14 March 1997
* Personnel Qualification Record
* College diplomas
* Extract of Army Regulation 600-8-24 (Officer Transfers and Discharges)
* Extract of Army Regulation 135-180 (Retirement for Non-Regular Service)
* Extract of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers)
* Extract of Title 10, U.S. Code (USC), section 14703
* Extract of Title 10, USC, section 12646
* Extract of Title 10, USC, section 12686
* Email exchange with various individuals
CONSIDERATION OF EVIDENCE:
1. Title 10, USC, 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's records show she was born on 25 November 1950. She turned 60 years of age in November 2010.
3. She was appointed as a Reserve commissioned officer of the Army, at 34 years and 7 months of age, and executed an oath of office on 13 June 1984. She completed the Reserve Component Army Medical Department (AMEDD) Advanced Course.
4. Her records show during Retirement Year Eligibility (RYE) June 1984 through June 1985, June 1985 through June 1986, and June 1986 through June 1987, she earned in excess of 50 qualifying points for each RYE. However, between June 1987 and June 1993, aside from USAR membership, she did not perform any IDT or earn 50 or more retirement points.
5. She served in a variety of troop program unit (TPU) assignments, in area of concentration (AOC) 66H (Nurse), and she was promoted to captain in June 1992 and major (MAJ) on 16 August 2000, in the USAR.
6. On 11 July 2003, HRC published a memorandum awarding her AOC 66C (Psychiatric/Mental Health Nurse).
7. She entered active duty on 23 January 2004 and served in Germany from February 2004 to February 2005, in AOC 66C. She was honorably released from active duty on 31 March 2005.
8. On 3 August 2006, by letter, HRC notified her that she was considered for promotion to lieutenant colonel (LTC) by the Reserve Components Selection Board (RCSB) that convened on 2 May 2006 but she was not selected.
9. On 24 July 2007, by letter, HRC notified her that she was considered for promotion to LTC by the RCSB that convened on 7 May 2007 but she was not selected.
10. Between 1 February 2007 and 31 January 2008, she was assigned to a TPU, the 7214th Medical Support Unit, Port Hueneme, CA. She received an OER for this period.
11. Between 1 February 2008 and 31 January 2009, she was assigned to a TPU, 6252nd U.S. Army Hospital, San Diego, CA. She received an OER for this period.
12. On 22 April 2009, her command submitted a DA Form 4651-R (Request for Reserve Component Assignment or Attachment) requesting her release from attachment. This form indicated the applicant was twice non-selected for promotion to LTC and her Selective Continuation (SELCON) was through 31 (i.e., 30) June 2008.
13. On 24 April 2009, HRC published Orders D-04-908627 honorably discharging her from the USAR, effective 23 April 2009, in accordance with Army Regulation 135-175 (Army National Guard and Army Reserve Separation of Officers).
14. Her current AHRC Form 249-E, after having been audited and corrected by HRC multiple times, shows she completed 18 years, 10 months, and 11 days of qualifying service for non-Regular retirement.
15. Title 10, USC, section 12646, states:
a. If on the date prescribed for the discharge or transfer from an active status of a reserve commissioned officer he is entitled to be credited with at least 18, but less than 19, years of service computed under section 12732 of this title, he may not be discharged or transferred from an active status under chapter 573, 1407, or 1409 of this title or chapter 21 of title 14, without his consent before the earlier of the following dates: (1)the date on which he is entitled to be credited with 20 years of service computed under section 12732 of this title; or (2) the third anniversary of the date on which he would otherwise be discharged or transferred from an active status.
b. If on the date prescribed for the discharge or transfer from an active status of a reserve commissioned officer he is entitled to be credited with at least 19, but less than 20, years of service computed under section 12732 of this title, he may not be discharged or transferred from an active status under chapter 573, 1407, or 1409 of this title or chapter 21 of title 14, without his consent before the earlier of the following dates (1) the date on which he is entitled to be credited with 20 years of service computed under section 12732 of this title; or (2) the second anniversary of the date on which he would otherwise be discharged or transferred from an active status.
c. An officer who is retained in an active status under subsection (a) or (b) is an additional number to those otherwise authorized.
d. Subsections (a) and (b) do not apply to (1)officers who are discharged or transferred from an active status for physical disability, for cause, or because they have reached the age at which transfer from an active status or discharge is required by law; or (2) commissioned warrant officers.
16. Title 10, USC, section 12731, provides that a non-Regular (Reserve) service member is entitled to retired pay upon application if the person is at least 60 years of age, has performed at least 20 years of qualifying service, and (having completed the service requirement during the period beginning 1 October 1994 and ending 30 September 1999) shall have performed the last 6 years of qualifying service while a member of a Reserve Component. The requirement to have last 6 qualifying years in a Reserve Component was changed to 0 in 2005.
17. Title 10, USC, section 14513 states each reserve officer of the Army, Navy, Air Force, or Marine Corps who is in an active status and whose removal from an active status or from a reserve active-status list is required by section 14504, 14505, or 14506 of this title shall (unless the officers separation is deferred or the officer is continued in an active status under another provision of law) not later than the date specified in those sections (1) be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officers armed force; (2) be transferred to the Retired Reserve if the officer is qualified for such transfer and does not request (in accordance with regulations prescribed by the Secretary concerned) not to be transferred to the Retired Reserve; or (3) if the officer is not transferred to an inactive status or to the Retired Reserve, be discharged from the officers reserve appointment.
18. Title 10, USC, section 14701(a)(3) states a reserve officer who holds the grade of major or lieutenant commander and who is subject to separation under section 14513 of this title may not be continued on the reserve active-status list under this subsection for a period which extends beyond the last day of the month in which the officer completes 24 years of commissioned service.
19. Title 10, USC, section 14701(b) (Continuation of Health Professions Officers) states (1) notwithstanding subsection (a)(6), a health professions officer obligated to a period of service incurred under section 16201 of this title who is required to be removed from the reserve active-status list under section 14504, 14505, 14506, or 14507 of this title and who has not completed a service obligation incurred under section 16201 of this title shall be retained on the reserve active-status list until the completion of such service obligation and then discharged, unless sooner retired or discharged under another provision of law; (2) the Secretary concerned may waive the applicability of paragraph (1) to any officer if the Secretary determines that completion of the service obligation of that officer is not in the best interest of the service; and (3) a health professions officer who is continued on the reserve active-status list under this subsection who is subsequently promoted or whose name is on a list of officers recommended for promotion to the next higher grade is not required to be discharged or retired upon completion of the officers service obligation. Such officer may continue on the reserve active-status list as other officers of the same grade unless separated under another provision of law.
20. Army Regulation 135-180 states in paragraph 2-1 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 an RC Soldier. During the period October 1991 to December 2001, the requirement to serve the last 8 years in an RC was amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero years. This regulation also specifies, in part, that each RC 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.
21. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers. Chapter 7 relates to the removal of Soldiers from an active status and states that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.
22. Title 10, USC, section 12203 provides that appointments of Reserve officers in the grade of lieutenant colonel and below shall be made by the President. This authority has been delegated to the Secretary of Defense via executive order (E.O. 13384, Section 1, 27 July 2005).
DISCUSSION AND CONCLUSIONS:
1. With respect to the issuance of a 20-year letter:
a. By law and regulation, Reserve Component members are required to complete 20 years of qualifying service in order to be eligible for non-Regular retired pay. A qualifying year of service for non-Regular retired pay is a full retirement year during which a Regular or Reserve member is credited with a minimum of 50 points.
b. The applicant was appointed in the USAR on 13 June 1984 and she was discharged from the USAR on 23 April 2009. Because she was a two-time non-select for promotion to LTC, she was required to be discharged with a maximum of 24 years of commissioned service. It appears she was SELCON through 30 June 2008 but was not timely discharged then. When her command discovered she had passed her mandatory removal date, they initiated a request to remove her. This occurred on 24 April 2009.
c. When she was discharged, she had completed 18 years, 10 months, and 11 days of qualifying service toward non-regular retirement. Because she did not complete 20 qualifying years of service required for notification of eligibility for retired pay at age 60, there is no basis for issuance of a 20-year retirement letter.
d. The section in the law that allows for the retention of reserve officers with 18 or 19 but less than 20 qualifying years of service does not apply in the applicant's case because the discharge was required by law after having reached maximum years of service.
2. With respect to her reappointment:
a. By law, appointments of Reserve officers in the grade of lieutenant colonel and below shall be made by the President. This authority has been delegated to the Secretary of Defense via executive order. The ABCMR may only correct Army records. The Board has no authority to correct records created by the other Services or the Department of Defense. Any correction by the ABCMR must comport with other laws.
b. The Board may not ignore a requirement contained in, or outcome dictated by, another statute. Typically, the ABCMR achieves this by changing an operative fact in the record, thereby making a correction in compliance with that statute. Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied. Consequently, based on statute that appointments of Reserve officers in the grade of LTC and below shall be made by the President (delegated to the Secretary of Defense), any correction to her appointment goes beyond the authority of this Board.
3. With respect to pay for IDT and AT, typically, pay issues are addressed with the Defense Finance and Accounting Service (DFAS) and where DFAS denies pay, a member may petition this Board to correct a military record that could result in entitlement to pay. Here, the applicant does not explain the facts and circumstances surrounding non-receipt of pay, does not show she addressed this issue with DFAS, does not provide documentary evidence related to pay, and does not provide evidence of non-pay. The Board is not an investigative body and it is virtually impossible to address this issue. The applicant may resubmit her application to this Board after she addresses pay issues with DFAS.
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 probably 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) AR20140018355
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ABCMR Record of Proceedings (cont) AR20140018355
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