BOARD DATE: 22 May 2020 DOCKET NUMBER: AR20190006067 APPLICANT REQUESTS: adjustment of her retirement year ending (RYE) date by 40 days. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 4-page electronic mail (email) * a memorandum * DA Form 5016 (Chronological Statement of Retirement Points) * 6-page email FACTS: 1. The applicant states: a. An adjustment of 40 days to her RYE date will allow her to retire with 20 years upon reaching her mandatory removal date (MRD) for maximum age. Her current MRD is 3 Xxxx 2020, at which time she will turn 68 years old. However, her RYE date is 9 July 2020, 40 days beyond her MRD. b. Without favorable intervention from the ABCMR, on 3 Xxxx 2020, she will be involuntarily removed from active military status. Her removal will result in an unjust forfeiture of nearly 20 years of qualifying service for a non-regular retirement. c. Every expectation is that prior to her MRD on 3 Xxxx 2020, she will have earned a minimum of 50 retirement points, which are required for a member of the Selected Reserve (SELRES) to be credited with a qualifying year of service. She believes that a more just interpretation of the one year period means the maximum period of time an officer has to earn the minimum number of retirement points needed for a qualifying year of service. d. Furthermore, she believes that there is an unfavorable disparity caused by the application of law regarding retirement solely because she is a Reserve officer. If she were a Regular component Army Medical Department officer, she would be retired upon reaching the maximum allowable age regardless of the number of years’ service completed. This disparate treatment based on component is not in the interest of justice. 2. The applicant was born on X Xxxx 19xx. She was appointed to the U.S. Army Reserve (USAR) as a medical officer on 10 July 2000 at the age of 48. 3. After her appointment, she served honorably on active duty from 21 August 2000 to 21 August 2007, a period of 7 years. 4. Upon discharge from active duty on 21 August 2007, she was reappointed to the USAR on 22 August 2007, without a break in service, and assigned to the Selected Reserve (SELRES). She has satisfactorily participated as a member of the SELRES each year achieving retirement points each year for good years toward non-regular retirement. 5. The applicant will reach 68 years of age on 3 Xxxx 20 and, as a function of law, (Title 10, USC, section14703) must be removed from an active status on her 68th birthday which will be 40 days before her RYE date (9 July 2020) to complete 20 years required to qualify for non-regular retirement. 6. The applicant provides a 4-page email discussion with the Chief, Reserve Retired Pay, U.S. Army Human Resources Command (HRC), dated 2017, in which he notes the applicant will have to petition the ABCMR in her last year of service upon earning 50 or more retirement points to adjust her RYE date to become retirement eligible. 7. A memorandum dated 19 April 2019, from the Chief, Support Branch, Health Service Division, HRC, requests the ABCMR favorably consider the applicant’s petition to the Board to adjust her RYE date (10 July 2020) by 40 days so she can qualify ro non- regular retirement upon reaching her MRD (3 Xxxx 20xx) for maximum age. The Chief states that the applicant, a Reserve Medical Corps (MC) officer, will be removed from an active status on 3 Xxxx 20xx when she turns 68 years of age during her 20th year of qualifying service 40 days short of attaining 20 years qualifying for a non-regular retirement, . a. Unfortunately, upon her prospective removal from an active status on 3 Xxxx 20xx, she will not qualify for a non-regular retirement because Army Regulation (AR) 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records), paragraph 1-7, expressly states that "[a] qualifying year of service for non-regular retired pay is a full year during which a RC member is credited with a minimum of 50 retirement points." AR 140-135, paragraph 1-8a, states that the full-year period used for the crediting of qualifying years for non-regular retirement is based on the anniversary years measured from an initial anniversary date. AR 140-185, paragraph 1-8a, states that the anniversary date, also referred to as the RYE date, is the date a Soldier entered into active service or active status in a Reserve Component. b. In this case, the applicant's anniversary date is 10 July 2000, the date she was first appointed to the USAR, which established her RYE date as 9 July for each subsequent year of service. Regrettably, the applicant was statutorily precluded from earning a non-regular retirement from the moment she first entered military service because she was 48 years old when she was appointed as a reserve commissioned officer. c. The Federal law (Title 10, USC, Subsection 12731(a)) governing retirement eligibility states that a person is entitled to non-regular retired pay if he or she has attained the statutorily prescribed age and, most importantly, has performed at least 20 years of service. AR 135-180 (Retirement for Non-Regular Service), paragraphs 2-1a. and 2-2a apply this same requirement. d. The applicant's ability to secure a non-regular retirement was never attainable, even under the special authority governing retention of select Army Medical Department (AMEDD) officers, because she could not fully complete 20 years of service before reaching her MRD for maximum age. She will reach 68 years of age on 3 Xxxx 20xx and, as a function of law, must be removed from an active status 40 days before her RYE date (9 July 2020). e. The Chief, Support Branch, Health Service Division, HRC, states that in this circumstance, it is reasonable for the ABCMR to adjust the applicant’s RYE date to align with her MRD (3 Xxxx 20xx) to avoid the unjust forfeiture of her entire career of service. Additionally and in further support of the Board using its equitable powers to remedy this injustice, please consider that the applicant submitted her application for initial appointment 30 days before her 48th birthday and had the Army taken the steps to quickly effectuate her appointment she would have the ability to secure a non-regular retirement. f. Alternatively, the Chief, Support Branch, Health Service Division, USAHRC requests the Board apply a different interpretation of controlling law to make the applicant eligible for non-regular retired pay when she is involuntarily removed from an active status for maximum age during her 20th year of service. (1) As noted in Title 10, USC, subsection 12731(a), and AR 135-180, paragraphs 2-1a. and 2-2a., a person is entitled to non-regular retired pay if he or she has attained the statutorily prescribed eligible age and performed at least 20 years of service. The law (Title 10, USC, subsection 12732(a)(2)) further provides that a person is credited with a qualifying year of service for each one-year period he or she earns at least 50 points. The Chief, Support Branch, Health Service Division, USAHRC request the Board interpret the one-year period to mean the maximum period of time an officer has to earn the minimum number of retirement points needed for a qualifying year of service. (2) The law (Title 10, USC, section 12732) implicitly allows this interpretation given it does not define one-year period as a "full-year of service in an active status" and, most importantly, does not preclude awarding a qualifying year of service to a service member who is involuntarily removed from an active status among the enumerated list of service limitations. (3) Applying this interpretation will allow the applicant to earn a qualifying year of service for non-regular retired pay if she earns 50 or more retirement points before she is involuntarily removed from an active status for maximum age during her 20th year of service. 8. The applicant provides a DA Form 5016 dated 13 August 2019, showing 19 years qualifying years for retirement through 9 July 2019. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is warranted as a matter of justice. 2. The Board noted the applicant’s 19 qualifying years toward non-regular retirement and that she has achieved the required retirement points in her 20th year for it to qualify for non-regular retirement but that her MRD of 3 Xxxx 20xx at age 68 will prevent her from completing her 20th year to qualify non-regular retirement by 40 days. 3. The Board noted the recommendation of the Chief, Support Branch, Health Service Division, HRC, that it would be reasonable for the ABCMR to adjust the applicant’s RYE date to 3 Xxxx 20xx to align with her MRD (3 Xxxx 20xx) to avoid the unjust forfeiture of her entire career of service as not qualifying for non-regular retirement. Additionally and in further support of the Board using its equitable powers to remedy this injustice, it should be consider that the applicant submitted her application for initial appointment 30 days before her 48th birthday, and had the Army taken the steps to quickly effectuate her appointment, she would have been appointed on a date that would have afforded her the ability to secure a non-regular retirement. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. Showing that the individual was appointed as a USAR medical officer on 3 Xxxx 20xx. b. Issuing the individual a corrected retirement point statement (DA Form 5016) showing a RYE date of 3 Xxxx. c. Issuing the individual a 20-year Letter of Eligibilty for Non-Regular Retirement. 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. REFERENCES: 1. Title 10, U.S. Code, Subsection 1251 (Age 62: regular commissioned officers in grades below general and flag officer grades; exceptions) states [Applies to Regular Army officers]: a. Subsection 1251(a) - Unless retired or separated earlier, each regular commissioned officer of the Army, Navy, Air Force, or Marine Corps (other than an officer covered by section 1252 of this title or a commissioned warrant officer) serving in a grade below brigadier general or rear admiral (lower half), in the case of an officer in the Navy, shall be retired on the first day of the month following the month in which the officer becomes 62 years of age. b. Subsection 1251(b)(1) - The Secretary of the military department concerned may, subject to subsection (d), defer the retirement under subsection (a) of a health professions officer if during the period of the deferment the officer— (1) Subsection 1251(b)(1)(A)- will be performing duties consisting primarily of providing patient care or performing other clinical duties; or (2) Subsection 1251(b)(1)(B)- is in a category of officers designated under subparagraph (D) of paragraph (2) whose duties will consist primarily of the duties described in clause (i), (ii), or (iii) of such subparagraph. c. Subsection 1251(b)(2) (A-C)- For purposes of this subsection, a health professions officer is a medical officer; a dental officer; an officer in the Army Nurse Corps, an officer in the Navy Nurse Corps, or an officer in the Air Force designated as a nurse; or d. Subsection 1251(b)(2) (D) (i-iii)- an officer in a category of officers designated by the Secretary of the military department concerned for the purposes of this paragraph as consisting of officers whose duties consist primarily of providing health care; performing other clinical care; or performing health care-related administrative duties. e. Subsection 1251(d)(1-2)- Except as provided in paragraph (2), a deferment under subsection (b) may not extend beyond the first day of the month following the month in which the officer becomes 68 years of age. The Secretary of the military department concerned may extend a deferment under subsection (b) beyond the day referred to in paragraph (1) if the Secretary determines that extension of the deferment is necessary for the needs of the military department concerned. Such an extension shall be made on a case-by-case basis and shall be for such period as the Secretary considers appropriate. 2. Title 10, U.S. Code, Subsection 12731(a) (Age and service requirements) states, except as provided in subsection (c), a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person: a. Subsection 12731(a)(1) - has attained the eligibility age applicable under subsection (f) to that person; b. Subsection 12731(a)(2) - has performed at least 20 years of service computed under section 12732 of this title; c. Subsection 12731(a)(3) - in the case of a person who completed the service requirements of paragraph (2) before April 25, 2005, performed the last six years of qualifying service while a member of any category named in section 12732(a)(1) of this title, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve, except that in the case of a person who completed the service requirements of paragraph (2) before October 5, 1994, the number of years of such qualifying service under this paragraph shall be eight; and d Subsection 12731(a)(4) - is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve. 4. Title 10, U.S. Code, Subsection 12732 (Entitlement to retired pay: computation of years of service) states, in pertinent part, for the purpose of determining whether a person is entitled to retired pay under section 12731 of this title, the person’s years of service are computed by adding one-year period, after July 1, 1949, in which the person has been credited with at least 50 points on the following basis: one point for each day of active service; or full-time service under sections 316, 502, 503, 504, and 505 of title 32 while performing annual training duty or while attending a prescribed course of instruction at a school designated as a service school by law or by the Secretary concerned; if that service conformed to required standards and qualifications. 5. Title 10, U.S. Code, Subsection 14515 (Discharge or retirement for age) states each Reserve officer of the Army, Navy, Air Force, or Marine Corps who is in an active status or on an inactive-status list and who reaches the maximum age specified in section 14509, 14510, 14511, or 14512 of this title for the officer’s grade or position shall (unless the officer is sooner separated or the officer’s separation is deferred or the officer is continued in an active status under another provision of law) not later than the last day of the month in which the officer reaches that maximum age— a. 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 b. be discharged from the officer’s Reserve appointment if the officer is not qualified for transfer to the Retired Reserve or has requested (in accordance with regulations prescribed by the Secretary concerned) not to be so transferred. 6. Title 10, U.S. Code, Subsection 14703 (Authority to retain chaplains and officers in medical specialties until specified age) states: a. Paragraph (a), Retention, states that notwithstanding any provision of chapter 1407 of this title and except for officers referred to in sections 14503, 14504, 14505, and 14506 of this title 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 Medical Corps, the Dental Corps, the Veterinary Corps, the Medical Services Corps (if the officer has been designated as allied health officer or biomedical sciences officer in that Corps), the Optometry Section of the Medical Services Corps, the Chaplains, the Army Nurse Corps, or the Army Medical Specialists Corps. However, an officer may not be retained in active status under this section later than the date on which the officer becomes 68 years of age. Paragraph (b) states an officer may not be retained in active status under this section later than the date on which the officer becomes 68 years of age. b. Paragraph (b)(1), Separation at Specified Age, states that subject to paragraph (b)(2) below, an officer may not be retained in active status under this section later than the date on which the officer becomes 68 years of age. c. Paragraph (b)(2), the Secretary concerned may, with the consent of the officer, retain in an active status an officer in a medical specialty described in paragraph (a) beyond the date described in paragraph (b)(1) of this subsection if the Secretary concerned determines that such retention is necessary to the military department concerned. Each such retention shall be made on a case-by-case basis and for such period as the Secretary concerned determines appropriate. 7. Army Regulation 135-180 (Army National Guard and Army Reserve - Retirement for Non-Regular Service) prescribes policies and procedures governing non-regular retirement. Paragraphs 2-1 and 2-2 of this regulation address age requirements- minimum age and basic qualifying service requirements. These paragraphs provided that to be eligible for retired pay, an individual must have attained the minimum age prescribed by law-age 60. Additionally, to be eligible for retired pay at or after the age specified in paragraph 2–1, an individual need not have military status at the time of application, but [for a 20-year retirement] must have completed a minimum of 20 years of qualifying service computed under 10 USC 12732. 8. Army Regulation 140-185 (Army Reserve - Training and Retirement Point Credits and Unit Level Strength Accounting Records) sets responsibilities and procedures to establish and maintain retirement records prescribing the types of training and activities for which retirement points are authorized. a. Paragraph 1-7 (Service requirement for a satisfactory year of service for non- regular retirement) states, a qualifying year of service for non-regular retired pay is a full year during which a RC member is credited with a minimum of 50 retirement points. Except as otherwise provided by law, an accumulation of 20 such years is one requirement necessary to qualify for non-regular retired pay. b. Paragraph 1-8 (Establishment of anniversary year) states, the criteria for establishing the service requirement for a satisfactory year of service for non-regular retirement per Department of Defense Instruction (DODI) 1215.07 and changing the anniversary year ending date are as follows: (1) The full-year periods used for the crediting of qualifying years for non-regular retirement must be based on the anniversary years. Anniversary year periods are calculated from an anniversary date. The anniversary date is the date the Servicemember entered into active service or active status in a RC. One exceptions to calculating anniversary years apply to officers with service as a cadet at a Service academy per 10 USC 403, or in a Senior ROTC Program in accordance with 10 USC 2104 and 10 USC 2107, will have, as an anniversary date, the date the Soldier entered into active service or active status minus any service as a cadet. (2) The month and day for each successive anniversary year will not be adjusted unless the Servicemember has a break in service. A break in service occurs only when a member transfers to an inactive status list, the inactive National Guard, a temporary disability retired list, the Retired Reserve, or is discharged for longer than 24 hours. There will not be a break in service if the Servicemember transfers directly to another active component or RC. When a Servicemember with a break in service returns to an active Reserve status or to active service, the revised anniversary year start date will be the date of return or reentry. (2) When the anniversary date shown on any authorized DA Form 5016 is incorrect the Soldier's unit of assignment should submit a request for action to HRC via encrypted email for processing. 9. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190006067 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1