MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           1 March 2001                  
	DOCKET NUMBER:   AR2000045857

	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. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John H. Kern 		Chairperson	
	Mr. Curtis L. Greenway 		Member	
	Mr. Richard T. Dunbar 		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 requests that she be retained beyond her mandatory removal date (MRD) in order to attain 20 qualifying years of nonregular service for retirement at age 60.   

APPLICANT STATES:  That she has 17 years, 5 months, and 25 days of Reserve service, and was not informed that she could retire because of a medical disability with 15 years of Reserve service.  She was not allowed to drill for points in order to complete 20 years of Reserve service.  She states that nurses are always overstrength, and lieutenant colonels and majors are used to fill captain positions.  She requested retention beyond her MRD; however, her request was disapproved, and she was informed she was out of the Army and could not attend drills (unit training assemblies).  She attempted to obtain information from personnel in her unit, to no avail.  She was not apprised of any redress in order to be retained beyond her MRD.  She was diagnosed with cancer in April 1998, but was not informed of the possibility of retiring based on having 15 qualifying years of Reserve service.  She was informed that her request for retention beyond her MRD was disapproved because her specialty was overstrength, and in effect, that her request was disapproved under the provisions of Army Regulation 140-10 (pre-ROPMA (Reserve Officer Personnel Management Act)) and Army Regulation 135-180.  She stated that although she was ill, she would continue her Reserve service in order to complete 20 qualifying years of service for retirement.     

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

The applicant was born on 9 June 1937 and reached age 60 on 9 June 1997.
She was appointed a Reserve commissioned officer in the Army Nurse Corps with the rank of major on 7 January 1980.  She was promoted to lieutenant colonel on 6 January 1987.  Letters in her file show that she was considered for promotion to colonel in 1991, 1992, 1993, 1995, and 1996.  She has had continuous service in the Army Reserve until her transfer to the Retired Reserve in 1997.  Her last unit of assignment was with the 94th General Hospital in Seagoville, Texas.

On 9 August 1996 the applicant requested that she be retained beyond her MRD. On 27 June 1997 the Army Reserve Personnel Center disapproved her request, stating in effect, that she was occupying a position whose authorized grade was two grades lower than her grade, and that there was no shortage of her specialty. The applicant was transferred to the Army Reserve Control Group (Retired) effective on 30 June 1997.

In a 30 July 1997 request for assistance to a member of congress (MC) the applicant stated that although she knew that the law required a soldier to be removed from an active status at age 60, there were provisions to allow lieutenant colonels with medical specialties to be retained until age 67.  She stated that she was a surgical nurse who had been crossed trained in multiple disciplines in the nursing field.  She stated that personnel in her present unit had in effect, used the Army regulations to favor some soldiers over others.  She stated that she was willing and able to continue to serve her country as a professional nurse.  She stated the unit to which she was assigned had a total of 24 authorized lieutenant colonel positions with six available positions; six authorized colonel positions with two available positions.  She stated that she had 39 years of nursing education and experience.    

In a 5 September 1997 response to a MC regarding her request, the Army Reserve Command at Atlanta stated that MRD actions were governed by Army regulatory guidance, were based on the needs of the Army, and personnel in certain specialties were allowed to remain past their MRD in certain critical specialties; however, the Army Reserve Personnel Center disapproved her request because there was no shortage of officers in her specialty.  That command also stated that there was no evidence of preferential treatment concerning MRD within her command. 

A 28 July 2000 chronological statement of retirement points shows that she had 17 years, 5 months, and 25 days of qualifying service for retirement at age 60.

Pre-ROPMA rules promulgated by Army Regulation 140-10, chapter 7, provides for the removal of Army Reserve soldiers from an active status, and states in pertinent part, that field and company grade officers not sooner removed for another reasons will be removed when they reach age 60.  Removal date will be the last day of the month they reach age 60.  There are exceptions to the removal rule for Army Medical Department (AMEDD) officers, which apply to those AMEDD officers who posses a critical specialty which is short of total Army mobilization requirements.  Retention must be in the best interest of the Army, and the specialty of the officer requesting retention must be short in total Army mobilization requirements and, for troop program unit (TPU) officers, the specialty must be short of total Army-wide TPU requirements. 

The ROPMA did not change the age requirement for removal from an active status.  Section 14509 of Title 10, U.S.C, states in effect, that each Army 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.  However, section 14703 of Title 10 states that the Secretary of the Army may retain in an active status any Reserve officer in the Army Nurse Corps up to age 67.  

Information obtained from the DA DCSPER on 26 February 2001 revealed that the pre-ROPMA rules pertaining to retention beyond MRD for AMEDD officers yet apply, e.g., possess a critical specialty which is short of total Army mobilization requirements, retention must be in the best interest of the Army, and the specialty of the officer requesting retention must be short in total Army mobilization requirements and, for troop program unit (TPU) officers, the specialty must be short of total Army-wide TPU requirements.

Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to soldiers and former Reserve Component soldiers.            Paragraph 2-1 of that regulation states, in pertinent part, that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his qualifying service as a Reserve component soldier.

The National Defense Authorization Act for Fiscal Year 1995 (Public                Law 103-337) amended Title 10, United States Code, section 1331a© (now codified under section 12731a).  The modification allows Reserve component soldiers who are involuntarily separated between 5 October 1994 and                30 September 1999 because of medical unfitness to elect transfer to the Retired Reserve for Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service toward Reserve component retirement.

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

1.  There is no evidence nor has the applicant submitted any, to show that she was medically unfit for service.  Furthermore, the applicant herself has stated that despite her ailments she would be willing to serve in the Army Reserve until she had 20 qualifying years of service for retirement, indicating that she felt that she was medically fit.  Consequently, she is not entitled to a physical disability retirement.  

2.  Although AMEDD officers may be retained beyond age 60 as stipulated above, there must be a need for those officers.  The applicant had reached her MRD, and her specialty was not critical to the Army’s needs.  Consequently, her transfer to the Retired Reserve in 1997 was proper.  

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of her request.   

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

5.  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

___rtd___  ___jhk___  ___clg___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000045857	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010301	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	135.00	
2.	136.00	
3.		
4.		
5.		
6.