MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            17 March 1999   
	DOCKET NUMBER:   AR1998012937

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. James P. Steauve		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, the applicant is requesting that his mandatory removal date (MRD) be extended in order to receive retirement points and pay to 23 June 1997, the date he was formally notified of his transfer to the Retired Reserve. 

APPLICANT STATES:  The applicant states that he was informed by personnel in his chain of command that the mandatory removal date (MRD) was normally extended to age 60 for medical personnel, and he was allowed to continue training with his unit until a decision was made [on his request for extension of his MRD].  That decision came on 23 June 1997.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant’s military records show that he was commissioned in the Army Reserve in 1978 and was an optometrist assigned to the 5503d Army Hospital, a Reserve unit, in Columbia, Missouri.  

A 19 March 1996 chronological statement of retirement points shows that the applicant had over 29 years of total military service, and 22 years of qualifying service for retired pay at age 60.  An April 1997 statement shows 30 years of service, and 23 years of qualifying service.    

On 8 May 1996 the Army Reserve Command at Atlanta notified the applicant that he would reach his MRD on 3 February 1997, and in accordance with Army Regulation 140-10, chapter 7, he would have to be separated or retired.  He was notified that he was not authorized to perform any military duties after his MRD.  The applicant was requested to complete an enclosed option statement and return it to the Army Reserve Command, and if an MRD extension option was requested to submit a memorandum requesting extension of his MRD. 

The applicant completed the option statement, requesting that he be retained in an active status, and stating that he understood that he had to submit a formal request through his unit commander.

On 2 June 1996 the applicant requested to his unit commander that he be retained in an active status until age 60, and further stated that he desired retention until he had been credited with 20 years of qualifying Federal service for retired pay.  His commanding officer forwarded his request, recommending approval, on 20 June 1996, and on 18 July the 89th Regional Support Command forwarded his request through the Army Reserve Command at Atlanta to the Army Reserve Personnel Center at St. Louis.   

The request was returned by ARPERCEN on 5 December 1996 for a recomputation of his MRD due to an inactive period [of service] from 1973 to 1978.  That information was forwarded to the applicant’s unit on 13 December with a 15 January 1997 suspense date.  In his 25 August 1997 letter to a member of congress (MC), the applicant stated that he sent the correspondence back in January 1997, implying that he did not want a recalculation of his MRD, but only requested that his MRD be extended until age 60.  He stated to the MC that he did not receive a reply until June of 1997, at which time his request was denied and he was transferred to the Retired Reserve retroactive to                     3 February 1997.

On 23 June 1997 the 89th Regional Support Command, the applicant’s Army Reserve command, published an order transferring him to the Retired Reserve, effective 3 February 1997. 
 
In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Army Personnel Reserve Command (AR-PERSCOM) in       St. Louis.  An official of that command stated that the applicant took immediate action to request extension in order to have 20 qualifying years of service for retirement, the unit encouraged and permitted the applicant to drill beyond his MRD, and it took too long to review and return his request.  That official recommended that the applicant’s MRD be extended until 30 June 1997.  A copy of that advisory opinion was furnished the applicant on 20 January 1999.  There has been no response.

Army Regulation 140-10, chapter 7, provides reasons for removal of Reserve soldiers from an active status and states that soldiers removed from an active status will be discharged or transferred to the Retired Reserve.  Paragraph 7-2 provides for removal of soldiers because of length of service and states that lieutenant colonels and below will be removed 30 days after they complete        28 years of commissioned service if under age 25 at initial appointment or their 53d birthday if age 25 or older at initial appointment.  Paragraph 7-15 provides for an exception to this removal rule for AMEDD officers and optometrists and podiatrists of the Medical Service Corps.  The AR-PERSCOM is the approving authority for requests for exceptions to this removal rule.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  Action taken on the applicant’s request was not timely, a year from the time he requested extension until an order was published transferring him to the Retired Reserve, albeit his request was returned for a recomputation of his MRD. And it took another five or six months to publish the order transferring him retroactively to the Retired Reserve.  The document, however, denying his request for extension is not available.  

2.  Notwithstanding the delay in processing his request for extension, to its ultimate denial, the applicant was specifically told that he was not authorized to perform any military duties after his MRD.  Personnel in his chain of command may well have encouraged him or acquiesced in his attendance at unit training assemblies.  Nonetheless, the onus is on the applicant to comply with instructions.  He, a senior officer with over 30 years of service, is deemed to be a prudent and responsible person, liable for his own actions.  He attended unit training assemblies after his MRD in apparent violation of instructions not to do so.  His excuse that he was permitted to drill does not relieve the applicant of his responsibility in this matter.  Therefore, this Board does not agree with the advisory opinion furnished by the AR-PERSCOM.  The applicant knew the rules and chose to ignore them.
 
3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___tsk__  ___owt__  ___jps__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998012937	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990317	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 135.05		
2.		
3.		
4.		
5.		
6.