MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           27 November 2001                  
	DOCKET NUMBER:   AR2001060279

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian 		Chairperson	
	Mr. Lester Echols		Member	
	Mr. John T. Meixell		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:  That her discharge be revoked.

APPLICANT STATES:  In effect, she turned 60 years of age on 10 April 2001 and completed 18 good years of Army Reserve service on 4 March 2001.  She has been passed over twice for promotion to lieutenant colonel (LTC).  She is an Army Medical Department (AMEDD) officer and therefore may be extended up to age 67.  Therefore, she is requesting an exception to policy for her discharge orders to be revoked and she be extended past age 60 to 62.  She also states that on the basis of Title 10, United States Code (USC), section 14703; therefore, she is eligible to be retained past age 60.  She submits copies of a memorandum dated 21 April 2001, Request for Exception to Policy and Retention; a memorandum dated 23 April 2001, Request for Exception to Army Regulation 140-10; a letter dated 2 July 2001 from the Office of the Chief, Army Reserve; and a memorandum dated 16 July 2001, Request For Revoking of Discharge.

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

She was appointed in the Reserve, Medical Services Corps (MSC), as a second lieutenant effective 4 March 1983.  She was appointed with 4 years constructive service credit.  She was born on 10 April 1941 and was 41 years, 10 months and 24 days old when appointed.  Her appointment orders show she signed an acknowledgement that she was unable to complete 20 years of qualifying service prior to age 60.

She was promoted to captain effective 3 March 1986 and to major effective 3 March 1993.  Her maximum time in grade date for promotion to lieutenant colonel was 2 March 2000.

She completed the officer advanced course on 31 July 1998.

On 2 April 2000, she enrolled in the Command and General Staff Officers Course (CGSOC).  Her records do not show she completed the course.

She was considered and not selected for promotion to LTC by the 1999 and 2000 Reserve Components Selection Boards (RCSB’s).  The boards did not divulge the reason(s) for her non-selections.

She reached age 60 on 10 April 2001.

On 21 April 2001, a legal assistance officer of the 78th Legal Support Organization requested an exception to policy for retention of the applicant as set forth in Army Regulation 140-10, chapter 7, section III.

She was separated on 30 April 2001 based on non-selection for promotion.

Her evaluation history shows she was rated less than maximum by several of her raters, and that she was rated below the center of mass on numerous reports by her senior raters.

Current promotion policy specifies that 50% completion of the CGSOC is required for promotion to LTC.  The policy also specifies that AMEDD officers, except MSC officers with primary specialty 67, are not required to meet the military education requirements for promotion to LTC.

The policy further provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.

Army Regulations 135-101 and 140-10 concerning appointment in the Reserve, in effect at the time, specified that officers unable to complete 20 years of qualifying service for retirement at age 60 were not permitted appointment unless they signed a waiver acknowledging this requirement.

Army Regulation 140-10, Section III prescribes the exceptions to removal of AMEDD branch officers for length of service and maximum age.  Rule 1 specifies that an exception to removal for length of service may be granted up to age 60 if the officer will be unable to complete 20 qualifying years of service for retired pay by age 60.  Rule 2 specifies that an exception to removal for maximum age up to age 64 if the officer will be unable to complete 20 qualifying years of service for retired pay by age 64.  These exceptions do not apply to officers twice non-selected for promotion.

Title 10, United States Code (USC), section 12646 (a)(1)&(2) specifies that an active Reserve status officer entitled to be credited with at least 18 years of qualifying service may not be discharged or transferred without his consent and before given an opportunity to complete 20 years for retirement.  This rule is commonly referred to as the “18 year lock-in”.

Title 10, USC, section 14509 specifies that each Reserve officer of the Army in a grade below brigadier general, who has not been recommended for promotion and is not a member of the Retired Reserve shall, on the last day of the month in which that officer becomes 60 years of age, be separated in accordance with Title 10, section 14515.

Title 10, USC, section 14515 specifies that each Reserve officer who is in an active status and reaches the maximum age for the officer’s grade or position shall be transferred to the Retired Reserve, if the officer is qualified and applies for such transfer or if the officer is not qualified or does not apply for transfer to the Retired Reserve, be discharged from their Reserve appointment.  This separation must occur not later than the last day of the month in which they reach the maximum age.

Title 10, USC, section 14703(a) specifies that the Secretary of the Army, with the officer’s consent, may retain in an active Reserve status any officer assigned to the MSC if the officer has been designated as an allied health officer or biomedical sciences officer in that Corps.  This section also specifies that an officer who has been twice non-selected for promotion is not eligible for extension under this title.

The Chief, Transition and Separation Branch, Total Army Reserve Personnel Command (AR-PERSCOM), expressed the opinion that the applicant was honorably discharged from the Reserve effective 30 April 2001 per letter order D-05-123025 dated 2 May 2001.  Discharge orders were published for the applicant because she received a second non-selection for promotion by a promotion selection board that met on 31 May 2000.  The President approved the results on 20 December 2000, and the applicant’s removal was required by 1 July 2001.  Discharge was mandatory because the applicant was neither eligible for transfer to the Retired Reserve nor eligible for an “18 year lock-in” under the provisions of Title 10, USC section 12646.  The provisions of Title 10, USC, section 14509 and 14515 dictated a separation date of 30 April 2001. 

He also opines that it appears that the Regional Support Command (RSC) attempted to secure an extension of the mandatory removal date (MRD) prior to the officer receiving her second non-selection.  The RSC request was made even though they were aware she would not be selected for promotion again because she had failed to become educationally qualified.  She was advised to do so on her officer evaluation report dated 9 August 1998, by assuming a greater responsibility in pursuing her military education.  Her chain of command was also aware that the applicant was recruited at an age where she could not qualify for a Reserve retirement.  The applicant had to be granted an age waiver to be appointed.  Also, an understanding concerning her age of appointment and how that related to qualifying for Reserve retirement should have been a part of her records.  He further opined that AR-PERSCOM cannot condone the apathy on the part of the soldier to become educationally qualified for promotion or the blatant attempt on the part of the RSC to secure an extension of an MRD prior to the announcement of the second non-selection of promotion.  Although the Health Services Directorate holds a board to meet Secretary of the Army 

guidance that MRD extensions are granted based on the needs of the service, final approval authority resides with the Director, Personnel Actions and Services Directorate.  The Transition and Separation Branch performs a final quality control review of the board recommendation to ensure extensions are in compliance with current law and directives.

He also opines that in this case, when the recommendation was received, it was denied based on Title 10, USC, section 14703(a).  This provision is clear in stating that officers who have received a second non-selection for promotion are not eligible to be extended under this title.  Therefore, the extension request was denied and a denial memorandum was issued to RSC.

He further opines that because the applicant was not eligible to be retained beyond maximum age (60) under Title 10, USC, section 14703, was not eligible for the 18 year lock-in-clause under the provisions of Title 10, USC, section 12646, and was not eligible to be transferred to the Retired Reserve because she did not complete 20 years qualifying service, discharge orders were issued effective 30 April 2001 in accordance with Title 10, USC, section 14509 and 14515.  Those orders are valid and in accordance with all provisions of current law.  Therefore, recommend that the orders not be revoked and the applicant remain discharged.  The applicant failed to become educationally qualified and failed to be promoted to the next higher grade at the same time she reached age 60.  This is supported by current law.  

The opinion was forwarded to the applicant for her acknowledgment/rebuttal on 6 September 2001.  In her rebuttal dated 18 September 2001, she states that she was very much aware of the fact that she needed to complete the CGSOC even though completion of the course is mandatory for officers in administrative positions and not for those in medical services.  She also states that there were other officers in her unit with same positions as she who had not completed the military education and they were promoted to LTC and others who were not promoted but were given the opportunity to complete their 20 years of service.  She further states that she knows Farsi (Iranian) and Ordu/Poshtu (Afghani) languages and the Army might be able to use her experience and training at such a critical period in our history and she be allowed to serve at least until this crisis is over.

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, it is concluded:

1.  In view of the circumstances in this case, the applicant is not entitled to voiding of her discharge and retention in the active Reserve past age 60.  She has not shown error, injustice, or inequity for the relief she now requests.

2.  Her contentions that since she is an MSC officer she may be extended up to age 67, and that AMEDD officers non-selected are not eligible for removal, have been noted by the Board.  However, the applicant was appointed in the Reserve at nearly age 42 and at the time of her non-selections in 1999 and 2000, she had not completed 18 years of service; therefore, she was not eligible for retention beyond age 60.  

3.  The Board further notes that as an MSC officer who has been twice non-selected for promotion to the next higher-grade, she was appropriately discharged from active Reserve status prior to completing 20 qualifying years of service due to her two non-selections for promotion.  

4.  The Board also notes that error or injustice is not readily apparent in this case, and under the circumstances, it does appear that the applicant was given the proper information at the time of her appointment in relation to qualifying for Reserve retirement.

5.  The Board also notes that the reason for her non-selections were not divulged by the promotion boards, and that officer promotion includes a competitive process of a promotion board determining an individual's potential and ability to perform at the higher grade.  Her non-selections were not based on a lack of education, they were based on her performance.

6.  The applicant was properly separated on 30 April 2001.  At the time of her appointment she acknowledged she could not complete 20 qualifying years of service before age 60.  She was also twice non-selected for promotion.  Both instances required her separation from the Reserve.

7.  The Board does not dispute the Army’s need for medical officers as stated by the applicant; however, the Army has stipulated specific standards for retention.  The applicant has not met those standards and her separation was not in error or unjust.  Her separation was based on her non-selections and the agreement made upon her appointment in 1983 that she could not complete 20 years of qualifying service at age 60.  It was also based on the disapproval of her request for retention beyond age 60 as an exception to policy.

8.  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 this requirement.

9.  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

_aao____  _jtm____  _le_____    DENY APPLICATION

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

INDEX

CASE ID	AR2001060279	
SUFFIX		
RECON	Y	
DATE BOARDED	20011127	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	111.0005	
3.	136.04	
4.		
5.		
6.