IN THE CASE OF: BOARD DATE: 28 April 2022 DOCKET NUMBER: AR20210014677 APPLICANT REQUESTS: * Reconsideration for her previous request for the correction of her service record to show she was retained in the U.S. Army Reserve (USAR) past her Mandatory Removal Date (MRD) of 31 October 2015 * Reinstatement in the USAR in the Area of Concentration (AOC) 65C (Dietitian) * Waiver to allow her to serve until age 68 * Special Selection Board (SSB) for consideration for promotion to colonel (COL) * Constructive credit for period of 1 November 2015 through date of reinstatement * Personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel brief (Memorandum in Support of Request for Reconsideration of Correction of Military Records * U.S. Total Army Personnel Command Memorandum, dated 10 March 1998 * DA Form 71 (Oath of Office – Military Personnel), dated 10 March 1998 * DA Form 67-9 (Officer Evaluation Report (OER) ending 10 March 1999 * DA Form 4980-18 (Army Achievement Medal Certificate), dated 6 November 1999 * DA Form 67-9 ending 5 August 2000 * DA Form 67-9 ending 17 January 2002 * DA Form 67-9 ending 31 January 2003 * DA Form 67-9 ending 31 May 2003 * DA Form 67-9 ending 31 May 2004 * DA Form 67-9 ending 31 August 2005 * DA Form 67-9 ending 31 August 2006 * DA Form 67-9 ending 31 August 2007 * American Society of Training and Development Certification Institute Letter, dated 26 October 2009 * DA Form 67-9 ending 5 January 2011 * National Certification Board for Diabetes Educators, dated 7 March 2011 * Academy of Health Sciences Certificate of completion * Lean Six Sigma Black Belt diploma * DA Form 87 (Certificate of Training) Army Medical Department (AMEDD) Captains Career Course * DA Form 67-9 ending 5 January 2012 * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 31 January 2012 * School of Health Related Professions Certificate of Completion * DA Form 67-9 ending 5 January 2013 * Army Reserve MRD slides * Penn State Hershey Continuing Education completion of Instructor Course * DA Form 67-9 ending 5 January 2014 * Syracuse University School of Information Studies certificate * Human Service Coalition of Tompkins County Certificate of Completion * DA Form 1059 (Service School Academic Evaluation Report), dated 23 July 2014 * National Certification Board for Diabetes Educators certification * E-mail traffic between applicant and unknown person on 27 October 2014 * E-mail from unknown person dated 28 October 2014 * E-mail from unknown person reference AOC 65C strength, dated 29 October 2014 * E-mail from applicant to unknown person requesting percentage of 65C, dated 29 October 2014 * HRC Form 4109 (Request for Extension of MRD) packet * MRD – Reserve Component Percent Fill form * National Commission for Health Education Credentialing, Inc, dated April 2015 * Military Personnel (MILPER) Message Number 15-158 (Fiscal Year (FY) 2015 Military Government Specialist (38G) Panel Announcement (Army Reserve) * U.S. Army Human Resources Command (HRC) Memorandum, dated 23 June 2015 * Applicant's Memorandum for Record, dated 18 August 2015 * Headquarters Department of the Army (HQDA) Inspector General (IG) Action Request System Electronic 1559 * E-mail traffic between the applicant and HRC during the period of 18 August through 18 September 2015 * U.S. Army John F. Kennedy Special Warfare Center and School letter, dated 26 October 2015 * HRC IG office letter, dated 26 October 2015 * DA Form 1559 (IG Action Request), dated 28 October 2015 * DA Form 67-10-2 (Field Grade Plate (O4, O5, CW3 – CW5) Officer Evaluation Report) ending 31 October 2015 * E-mail traffic between the applicant and HRC 2 through 5 November 2015 * DA Form 4980-12 (Meritorious Service Medal Certificate) * National Board of Public Health Examiners, dated 24 June 2017 * Report of Proceeding (ROP) Army Board for Correction of Military Records (ABCMR) Docket Number AR2015001 * Officer of the IG letter, dated 28 January 2019 * Data Request for Freedom of Information Act, dated 9 April 2019 * E-mail from unknown person dated 11 June 2020 * E-mail from counsel to applicant dated 27 January 2021 * Applicant's biography * Screenshot of Army 65C Career Website * Soldier Management System screenshot * ROP Air Force Board for Correction of Military Records Docket Number BC-2013-02836 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2015001 on 12 October 2017. The Board denied that applicant’s request for the correction of her service record to show she was retained in the USAR past her MRD of 31 October 2015. The evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of the case were insufficient as a basis for correction of the service record. 2. The applicant states through counsel she was unfairly and illegally deprived of the opportunity to continue in the service of her country and should be reinstated and granted constructive service credit to continue her outstanding service. As an alternative, the applicant requests constructive service credit from the date of her unfair discharge of 31 October 2015 until the date the Board renders its decision. Failing that, she requests constructive service credit until 31 March 2018, at which time she would have obtained 20 years of qualifying service to retire in the grade of lieutenant colonel (LTC)/O-5. a. The applicant holds a dietitian degree as well as a master's degree in health education and specialized in weight management and diabetes education. The applicant was certified in diabetic education and a certified Professional in Learning and Performance from the ASTD Certification Institute and Health Education Specialist. She has also studied Applied Physiology for Diabetic Professionals. Her military education includes: Captain's Career Course, Lean Six Sigma Black Belt, Instructor Training Course, Intermediate Leadership Education (ILE), and the Joint Field Nutrition Operations Course. b. A year prior to her MRD, the applicant contacted HRC for guidance on requesting a MRD extension, and she submitted her written request on 26 February 2015. Her packet included endorsements for her request from the Director of the Graduate Program in Nutrition and her senior rater which stated the granting of the extension would be in the best interest of the USAR. The applicant also received an endorsement from the senior dietitian in the USAR, which stated the applicant had unique credentials, and the USAR was having a difficulty recruiting officers with advanced credentials that was required to service as a professor in the graduate program in nutrition. There was a position that was vacant for over a year in the nutrition graduate program due to the lack of qualified dietitians. The applicant's request was disapproved and she requested reconsideration, which included an endorsement from the program manager for Integrated Health Education that stated the applicant had a critical importance to the Performance Triad Nutrition Working Group for the Army Surgeon General. The initiative focused on sleep, activity, and nutrition to improve Soldiers’ performance, resiliency, readiness, and health. The applicant received an e-mail which stated her reconsideration for MRD extension was disapproved, but it did not appear there was a formal review of her request. c. In order to continue to serve her country, the applicant found an under-strength AOC to transfer to in order to extend her MRD and found 38G (Economist) AOC within the Civil Affairs Branch. The applicant submitted a packet and was selected on 26 October 2015 as a 38G. In spite of her selection into an under-strength AOC, the USAR discharged her on 31 October 2015. The IG contacted the Civil Affairs branch, who stated the applicant was selected for 38G based on her skills and knowledge but the applicant's MRD overrides the selection. Being her MRD extension request was denied, she would not be allowed to be accepted into Civil Affairs. d. The applicant contacted the Army Inspector General (IG) on 19 October 2015 to request a review of the process by which her MRD extension request was denied and if she could accept her approved transfer to the Civil Affairs Branch. The IG was unable to assist her and closed the inquiry on 2 December 2015. e. The applicant faithfully served 17 years, 7 months, and 15 days in the USAR as a dietitian and was involuntarily separated just short of the 18-year sanctuary. The applicant displayed the dedication and desire to support and further the Army mission and her leaders wanted her to continue to serve as well; however, the Army responded with delays and an unclear extension process and denied her a fair opportunity to continue her career. f. The Army used a flawed process to deny her MRD extension request and evidence from the Freedom of Information Act (FOIA) shows the MRD process was poorly managed and the decision-making process was arbitrary and capricious. When the applicant inquired with HRC in late October 2014, she was only provided with the mailing address for the packet and any supporting documents. She was never provided any information in proper format, advised what documents were required, or given any other assistance. The applicant also asked for information on how many dietitians were certified as diabetes educators and Health Education Specialists. The only information that was provided was the AOC 65C was over strength. It was clear from the e-mail there was little interest in the applicant's request for MRD extension. Though her request was received at the time of her submission, it was not actioned until 20 April 2015, nearly 60 days after it was submitted. Then it took another 60 days to receive a final decision of disapproval. HRC stated requests are processed in the precedence of MRD and depending on the workload. There were times late requests were received with only days or weeks to process, thus no matter how early a request was submitted, it would be pushed behind the last-minute requests. So the applicant was penalized for being proactive in submitting her request as early as possible. If HRC would have processed the applicant's request in a timely manner, she would have had more time to pursue other options to continue to serve her country. She could have found additional under strength AOCs and the IG could have provided her with actionable information before she was involuntarily separated. g. Information the applicant gathered from the FOIA request shows HRC's decision to deny her MRD extension was arbitrary, capricious, contrary to past practice, and based on erroneous information. The basis for the denial was the over strength of the dietitian AOC; however, these numbers are suspect and demonstrate the USAR was not managing the 65C AOC with a goal of reducing manning. An e-mail from the United States Army Reserve Command (USARC) shows at the beginning of fiscal year (FY) 2015 there were 64 Soldiers with AOC 65C and at the beginning of FY 2017 the number had grown to 74. However, information from a different office shows at the beginning of FY 2015 there were 87 65C positions in the USAR and still another document shows there were 91 Soldiers with the 65C AOC, but only 68 positions. This shows the inconsistency in the USAR databases regarding the assigned and authorized strengths. h. In Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), paragraph 7-18 states the specialty of the officer requesting the 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 way the regulation is written, mobilization requirements are the only determining factor. This means despite the manning numbers the HRC Commanding General had the authority to approve her extension. If the manning numbers were the sole determining factor, why would savvy Army COLs have written recommendations for approval of her request? The IG was also told the Health Service usually approved these requests. The Army failed to follow their own regulation by providing a rationale for review and approval of MRD extension requests, thus acting in an arbitrary and capricious manner. The Board should overturn the HRC decision to deny the applicant's request. i. When the applicant joined the USAR in 1998, the law stated officers in the grade of COL and below were to be discharged or retired at age 60; however, in 2006, Congress changed the law to state each reserve officer who has not been recommended for promotion to brigadier general and was not a member of the Retired Reserve shall, on the last day of the month in which that officer becomes 62, be separated or retired. Thus, the applicant was entitled to serve until age 62. 3. A review of the applicant's service record shows: a. The applicant completed her oath of office on 10 March 1998 and was appointed as a Reserve commissioned officer in the rank/grade of first lieutenant (1LT)/O-2 in AOC 65C. The U.S. Total Army Personnel Command appointment memorandum shows she was credited with 5 years and 9 months of service in an active status which was not valid for pay entry basic date for Medical and Dental Corps and was not the result of prior military service. The applicant received an approved age and age in grade waiver. b. On 14 April 1998, Orders Number C-04-812202, issued by the U.S. Total Army Personnel Command, the applicant was assigned to a USAR TPU due to appointment, effective 10 March 1998. c. The applicant's service record is void of evidence for her assignment to the USAR Control Group (Annual Training). On 1 September 2004, Orders Number C-09-421593, issued by HRC, reassigned the applicant to Madigan Army Medical Center as an Individual Mobilization Augmentee (IMA), effective 1 September 2004. d. On 1 February 2011, Orders Number A-02-102293, issued by HRC, ordered the applicant to active duty in support of contingency operation for active duty operational support in support of Continental United States base support, effective 21 February 2011. e. The applicant was honorably released from active duty on 31 January 2012. DD Form 214 shows the applicant completed 11 months and 10 days of active service. f. On 7 March 2014, Orders Number B-03-400935, issued by HRC, promoted the applicant to the rank of LTC/O-5, effective 10 January 2014 with the same date of rank. g. An HRC Form 4109 submitted by the applicant requesting a MRD extension on 26 February 2015 was disapproved on 21 August 2015 by the Commanding General, HRC. The SMS screenshot shows the applicant was 59 years of age at the time of her MRD extension request and AOC 65C was over strength with a strength of 134 percent and over strength in the rank of LTC at 213 percent. It also shows the AOC was over strength for COL at 167 percent and 100 percent strength for majors. h. On 27 July 2015, Orders Number D-07-514416, issued by HRC, honorably discharged the applicant from the USAR, effective 31 October 2015. She completed 17 years, 7 months, and 22 days of service qualifying for non-regular retired pay. i. A U.S. Army John F. Kennedy Special Warfare Center and School letter, dated 26 October 2015 shows the applicant was selected to AOC 38G. The letter also states the AOC was to leverage a capability inherent to the civilian workforce and was not replicable through military training. As a result, the capability only resided in the USAR by TPU officers. A review of the applicant's service records determined her educational and professional civilian work experience qualified her to be awarded AOC 38G with the skill identifier 6C (Economist) and the professional development proficiency code 1N (Expert Functional Skill Practitioner). There were additional steps the applicant was required to complete to officially serve as a 38G. 4. The applicant provides: a. OER for period of 11 March 1998 through 10 March 1999, the applicant was rated as Chief Dietician which shows her rater rated her performance as outstanding and must promote. She was a technically competent leader, who should be promoted as soon as time in grade permits. Her senior rater rated her as fully qualified. b. DA Form 4980-18 shows the applicant had exceptional meritorious service as the Food Service Officer during annual training and her leadership skills and supervisor ability was exceptional. c. OER for period of 23 July through 5 August 2000, the applicant was rated as Outpatient Nutrition Coordinator which shows her rater rated her performance as outstanding and must promote. Her unequalled technical competence and clinical experience were evident in her professional and high quality presentation on Complementary Alternative Medicine. Her senior rater rated her as best qualified and to promote immediately. Her clinical experience and expertise were invaluable to the staff and patients she interacted with. d. OER for period of 18 January 2001 through 17 January 2002, the applicant was rated as Schools Officer which shows her rater rated her performance as outstanding and must promote. Her knowledge and expertise had proven she possessed the skills, knowledge, and professional competence to be successful in any field grade assignment. Her senior rater rated her as best qualified and to promote and utilize as much as possible. e. OER for period of 1 February 2002 through 31 January 2003, the applicant was rated as S1 Staff Officer which shows her rater rated her performance as outstanding and must promote. Her accomplishment clearly exceeded the expectations set upon her. She was an outstanding officer and should be considered for positions of increasing responsibility to include company command. As soon as eligible, select for promotion to major. Her senior rater rated her as best qualified, center of mass, and recommended her for challenging assignments and promotion to major. f. OER for period of 1 February through 31 May 2003, the applicant was rated as Battalion S1 which shows her rater rated her performance as outstanding and must promote. The applicant should be considered for company command and select for promotion to major at the earliest opportunity. Her senior rater rated her as best qualified and above center of mass. She was a long term asset to the Army Reserve program and promote at the earliest opportunity. g. OER for period of 1 June 2003 through 31 May 2004, the applicant was rated as S1 Staff Officer which shows her rater rated her performance as outstanding and must promote. She should be considered for positions of increasing responsibility and promote to major at the first opportunity. Her senior rater rated her as best qualified, above center of mass, and promote after completion of the Officer Advanced Course. h. OER for period of 1 September 2004 through 31 August 2005, the applicant was rated as Outpatient Dietitian which shows her rater rated her performance as outstanding and must promote. Her senior rater rated her as best qualified and no box check for potential. She became an instant valuable member of the Nutrition Care Division. She has unlimited potential and was one of the USAR's finest officers. i. OER for period of 1 September 2005 through 31 August 2006, the applicant was rated as Clinical Dietitian which shows her rater rated her performance as outstanding and must promote. She was a superb officer and Soldier who was already functioning at a field grade level, promote immediately. Her senior rater rated her as best qualified and no box check for potential. She had never seen a more flexible and professional IMA. She should be given advanced military and civilian training opportunities and challenge with tough assignments. j. OER for period of 1 September 2006 through 31 August 2007, the applicant was rated as Clinical Dietitian which shows her rater rated her performance as outstanding and must promote. Her outstanding leadership and technical and communication skills made her an excellent candidate for promotion. Her senior rater rated her as best qualified and was an outstanding asset for Madigan Army Medical Center Nutrition Care Division. In the senior rater's 25-years of service, had never seen a more flexible and professional IMA. She should be promoted at the earliest opportunity. k. ASTD Certification Institute letter, dated 26 October 2009, showing the applicant completed the CPLP work product assessment and received her CPLP certificate. l. OER for period of 6 January 2010 through 5 January 2011, the applicant was rated as Special Projects Officer, Graduate Program in Nutrition which shows her rater rated her performance as outstanding and must promote. She was a tremendous asset and exceptional officer in the Graduate Program in Nutrition. She should be promoted ahead of peers to LTC. Her senior rater rated her as best qualified, center of mass, to be promoted immediately. She was recognized as an expert in her field who was dedicated to her profession and an extraordinary military officer. m. National Certification Board for Diabetes Educators showing the applicant was active on 7 March 2011 as a certified Diabetes Educator. n. Training certificate from the Academy of Health Sciences showing the applicant successfully completed the Instructor Training Course during the period of 18 through 29 April 2011. o. Lean Six Sigma Black Belt diploma showing the applicant completed 128-hours of course work on 4 November 2011. p. DA Form 87 showing the applicant completed the digital learning AMEDD Captains Career Course on 26 December 2011. q. OER for the period of 6 January 2011 through 5 January 2012 showing the applicant was rated as the Deputy Director, U.S. Military Dietetic Internship Consortium, which shows her rater rated her performance as outstanding and must promote. She had unlimited leadership potential and should be promoted to LTC ahead of peers. Her senior rater rated her as best qualified, center of mass, to be promoted immediately to LTC and selected for the Army War College. r. Certificate of completion from School of Health Related Professions, University of Medicine and Dentistry of New Jersey showing the applicant completed a session in Applied Physiology for Dietetic Professional on 30 March 2012. s. OER for the period of 6 January 2012 through 5 January 2013, the applicant was rated as Special Projects Officer/Adjunct Faculty which shows her rater rated her performance as outstanding and must promote. She had the potential to serve as one of the AMEDD senior leaders at the Department of Defense and Medical Command levels. The applicant's senior rater rated her as best qualified, above center of mass, and must select for LTC. She was among the top five percent of officer senior rated and an exceptionally competent and versatile leader who was dedicated to achieving the highest level of success. t. Army Reserve MRD slides show the maximum years of commissioned service or maximum age, which ever came first was 28 years for LTC or maximum age of 60. The Secretary of the Army did not elect to adopt age 62 as authorized by law. TPU MRD extension for AMEDD, other than Medical Service 67/70 could be in 2-year increments up to age 68 and the approval authority rests with HRC on behalf of the Secretary of the Army. u. Pennsylvania State Hershey Continuing Education certifies the applicant completed Teaching with Simulation: An instructor Course certificate program on 26 April 2013. v. OER for period of 6 January 2013 through 5 January 2014, the applicant was rated as Communications Officer which shows her rater rated her performance as outstanding and must promote. She was an exceptional officer and team player. Her senior rater rated her as best qualified, center of mass, with outstanding performance by a Top Block officer. She was a true asset to the AMEDD and Graduate Program in Nutrition. Send her to Senior Service College. w. In the Spring of 2014, the applicant completed Applied Education Project Management at the Syracuse University School of Information Studies. x. The applicant completed the Leading with Impact for the period 16 through 18 April and 4 through 6 June 2014 with Human Service Coalition of Tompkins County, incorporated which was approximately 45-hours. y. DA Form 1059 showing the applicant achieved course standards for the Command and General Staff Officer Course during the period of 8 May 2013 through 22 July 2014. z. National Certification Board for Diabetes Educators showing the applicant was certified as a Diabetes Educator on 15 September 2014 which was valid through 31 December 2019. aa. E-mail traffic between the applicant and an unknown person, dated 27 October 2014, the applicant inquired about the point of contact to send her request for MRD extension to and who should her recommendation letters be addressed to. She also inquired if there was a particular format. In response the applicant received the name of the person to which she should send her request and he could provide more details to her inquiry. bb. E-mail from unknown person, dated 28 October 2014, provided the applicant with the e-mail address at HRC to submit her MRD extension packet and the address for the recommendation letters. cc. E-mail from unknown person, dated 29 October 2014, which responded to the applicant's request for the percentage of 65C officers that were certified Diabetes Educators and Health Education Specialists. The response received stated the 65C AOC was over strength at 126 percent strength and by rank LTC was at 190 percent strength with COL at 125 percent strength. dd. HRC Form 4109 packet dated 26 February 2015, which shows the applicant understood she was requesting an extension of her MRD and acknowledge she may be removed before becoming eligible for retired pay and may be unable to complete 20-years of qualifying service for retired by the end of the requested extension. ee. MRD-Reserve Component Percent fill shows the applicant's MRD was 31 October 2015 for maximum age. It also shows the AOC in the USAR was authorized 68 and there were 91 assigned which was 23 Soldiers over strength. For the rank of LTC, the AOC was authorized 8 and had 17 assigned which was 9 over strength. For the rank of COL, the AOC was authorized 3 and assigned 5 which was 2 over strength. ff. National Commission for Health Education Credentialing, Incorporated showing the applicant was a Certified Health Education Specialist as of April 2015. gg. MILPER Message Number 15-158 applied to applicants for branch transfer to Military Government Specialist (38G) which stated applicants must possess civilian expertise in Civil Affairs (CA) related fields, secret security clearance, qualify for award of Degree of Proficiency Code in CA, and master's degree from accredited university. The 38G selection panel results would be announced no later than 30 September 2015. hh. U.S. Army HRC Memorandum, dated 23 June 2015, showing the applicant's request for MRD extension was disapproved. The applicant's retention was not in the best interest of the Army. ii. Memorandum for Record, dated 18 August 2015, from the applicant on City of Ithaca letterhead, Subject: MRD Age Extension Packet new document enclosures explanation, shows the applicant listed: * Letter of recommendation from Public Health commander in support of Performance Triad Initiative * Certificate of Appreciation from 333rd Military Police Brigade * Advanced Practice Certification: Certified Health Education Specialist * Soldier's written documentation which focuses on support of critical missions * Current vitae (1) U.S. Army Public Health Command Memorandum, dated 13 August 2015, Subject: Request for Extension of MRD for the applicant which stated the applicant had been a vital member of the Performance Triad Nutrition Working Group which developed multiple nutrition education materials for the Army. The retention of the applicant was in the best interest of the USAR. She demonstrated leadership, work ethic and dedication. Her many talents included extraordinary attention to detail, coordination and efficiency at all tasks. She was a true asset in the USAR and she made many contributions to the Graduate Program in Nutrition AMEDD Center and School. (2) Certificate of Appreciation from the 333rd Military Police Brigade which recognized the applicant’s support of the brigade. Her support, dedication, and diligence greatly contributed to the success of the brigade separating an officer for misconduct from the Army. (3) National Commission for Health Education Credentialing, Incorporated, which shows the applicant was a certified Health Education Specialist granted in April 2015. (4) Applicant's written statement requesting age extension of her MRD which stated she was assigned to the Graduate Program in Nutrition which was the chief pipeline for recruiting dietitians into the Army. She was the graduate instructor for weight management and leadership. She was the liaison between recruiters, schools, students and the Graduate Program for Nutrition. She was selected based on her advanced credentials, 10-years of graduate education, leadership development, experience as program director, and recruiting and marketing background. The Performance Triad was an initiative for the Army Surgeon General Office which focused on sleep, activity, and nutrition to improve the performance, resiliency, readiness, and health of Soldiers. jj. Department of the Army IG Action Request System Electronic 1559, which advised her request does not meet any of the criteria for MRD extension. kk. E-mail, dated 18 September 2015, from MAJ P- O- which stated MRD applies to the Individual Ready Reserve (IRR) as well, in response to the applicant's inquiry if she would be able to be assigned to the IRR. After she was notified on 14 September 2015, her request for reconsideration for MRD extension was reviewed and the decision to disapprove her MRD extension remained in place. The 65C specialty was over strength in aggregate, current grade, and the next higher grade. The 65C AOC strength was 134 percent, 213 percent in grade, and 167 percent in the next higher grade and the AOC was not on the Critical Wartime Shortage list and was not a 90-days boots on ground asset. ll. HRC letter, dated 26 October 2015, wherein the Assistant IG replied to the applicant stating in pertinent part, her request for MRD extension does not meet the criteria. mm. DA Form 1559, by which the applicant requested a follow-up to her DA Form 1559 submitted on 13 October 2015, she requested the USAR IG office to speak with Ms. C- S- at the HRC IG office for background information and present her DA Forms 1559 and MRD extension packet to the appropriate chain of command at USARC that has the authority to get involved in the problem solving/decision making process for her MRD extension request. nn. OER for the period of 6 January through 31 October 2015 which shows the applicant was rated as the Special Projects Communications Officer/Instructor which her rater rated her performance as proficient. She continued to be an invaluable asset to the Graduate Program for Nutrition. Her senior rater rated her as highly qualified and was one of the most pro-active field grade officers she had worked with in 25-years of service. She had unlimited potential to serve in most senior positions of responsibility in medicine both in the military and civilian sector. oo. E-mail from Ms. C- S- HRC IG officer, dated 4 November 2015, which stated it was found that Mr. C- processes requests based on priority and when the applicant's packet was received it was a high-volume period for processing actions. Not an excuse for the amount of time it took to process the applicant's request, but at that time there was really no further action that could have been taken from the IG office. The applicant's packet was clearly disapproved based on strength and numbers by the DCG. pp. DA Form 4980-12 showing the applicant was recognized for her exceptionally meritorious service during the period of 20 December 2009 through 31 October 2015 which culminated as the Graduate Program in Nutrition Mobilization Augmentee. Her dedication to excellence were invaluable to the success of the program. qq. National Board of Public Health Examiners certificate showing the applicant completed the educational and examination requirements on 24 June 2017 to demonstrate mastery of the knowledge and skills relevant to contemporary public health and was certified in Public Health. rr. Officer of the Inspector General letter, dated 28 January 2019, in response to FOIA request for the applicant's documents related to her IG action request to HRC and USARC IG offices. ss. Data response to FOIA request, dated 9 April 2019, reference 65C, the data was believed to be correct for dates and categories requested, but there may be a margin of error. (1) Number of 65C position in the USAR between 2014 through 2019 * 87 on 30 September 2014 * 83 on 30 September 2015 * 76 on 30 September 2016 * 77 on 30 September 2017 * 69 on 22 October 2019 (2) Number 65C LTCs * 17 on 30 September 2014 * 14 on 30 September 2015 * 15 on 30 September 2016 * 16 on 30 September 2017 * 10 on 22 October 2019 (3) Number of 65C LTC education * Master's degree * 7 on 30 September 2014 * 6 on 30 September 2015 * 6 on 30 September 2016 * 5 on 30 September 2017 * 3 on 22 October 2019 * Doctorate Degree * 2 on 30 September 2014 through 30 September 2017 * Command and General Staff College (ILE) * 9 on 30 September 2014 * 7 on 30 September 2015 * 6 on 30 September 2016 * 4 on 30 September 2017 * 5 on 22 October 2019 tt. E-mail from unknown person on 11 June 2020 shows the total of USAR Soldiers in AOC 65C: 64 in FY 2015, 57 in FY 2016, and 74 in FY 2017. uu. E-mail from counsel forwarding USARC response to FOIA request on 19 January 2021 shows the basic numbers for 65C LTCs that were deployed. vv. GoArmy.com website screenshot for 65C (Dietitian) which shows the Army may compensate an individual for continuing education, non-contributory retirement at age 60 with 20 years of qualifying service, and flexible portable retirement savings and investment plan similar to a 401(k). ww. AFBCMR Docket Number BC-2013-02836, which shows the AF applicant requested her records corrected to change MRD from 31 December 2012 to 31 December 2015 to allow retirement eligibility, reinstated into her IMA position, and granted constructive credit from the date of her 31 December 2012 discharge. This applicant was unjustly denied MRD extension after performing almost 18 years of service. The Board found sufficient relevant evidence was presented to demonstrate the existence of an injustice. The Board recommended corrective action; the inordinate delay in the denial of the MRD extension request resulted in her being notified several months after her MRD expired, just 2 months prior to qualifying for retention beyond MRD, which renders her a victim of injustice. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found partial relief is warranted. The Board found the available evidence sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board noted the applicant completed 17 years, 7 months, and 22 days of service qualifying for non-regular retired pay and found her discharge in close proximity to reaching 18 years of service, a point at which she would have been retained to complete 20 years of service, to be unjust in consideration of her willingness and efforts to continue her service in an understaffed AOC. The Board determined it would be appropriate to correct her record to constructively show she completed 20 years of service qualifying for non-regular retired pay and was notified of her eligibility for retired pay based on 20 years of Reserve Component service. 3. Considering the time that has passed since her discharge and the relief proposed above, the Board determined there is no basis for reinstating the applicant in the USAR in AOC 65C or granting her a waiver to allow her to serve until age 68. The Board also determined there is no basis for referring the applicant’s record to an SSB for consideration for promotion to COL. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing she completed 20 years of service qualifying for non-regular retired pay and was notified of her eligibility for retired pay based on 20 years of Reserve Component service. As a result of this correction, the applicant should receive any retired pay she is due retroactive to the day after she would have completed 20 years of service. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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 USC, section 1251 (Age 62: regular commissioned officers in grades below general and flag officer grades; exceptions), (a) unless retired or separated earlier, each regular commissioned officer of the Army (other a commissioned warrant officer) serving in a grade below brigadier general shall be retired on the first day of the month following the month in which the officer becomes 62 years of age. (b) Deferred Retirement of Health Professions Officers, (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: * will be performing duties consisting primarily of providing patient care or performing other clinical duties; or * is in a category of officers designated under subparagraph (D) (2) whose duties will consist primarily of the duties described in clause (i), (ii), or (iii) of such subparagraph. (2) For purposes of this subsection, a health professions officer is: * a medical officer; * a dental officer; * an officer in the Army Nurse Corps, designated as a nurse; or * 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 2. Army Regulation (AR) 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers. Soldiers not sooner removed for another reason will be removed when they reach the maximum age with the removal date shown as the last day of the month in which they reach the maximum age. The maximum age for field and company grade officers is age 60. a. Paragraph 7-3 (Maximum age (removal rule 2)), a. Exceptions to removal rule 2 are numbered 1, 8 and 15. Also, see section III of this chapter for exceptions to removal of AMEDD branch officers for maximum age. b. Soldiers not sooner removed for another reason will be removed when they reach maximum age. Removal date will be the last day of the month in which they reach the age stated below. Age 60 for General officers (see AR 135–156), field and company grade officers, commissioned WOs, Soldiers having 20 or more years of qualifying Federal service, and enlisted Soldiers; and age 62 for WOs other than commissioned WOs. b. Paragraph 7-14, prescribes the policy governing exceptions to removal for length of service or age. (1) The regulation authorizes the retention of Reserve Component officers in an active status in certain AMEDD AOCs until age 68. (2) Subject to the following guidance, an officer who meets the applicability criteria may be retained beyond his or her MRD for length of service (removal rule 1) and age (removal rule 2). The Commander, U.S. Army HRC operating on behalf of Headquarters, Department of the Army, Deputy Chief of Staff (DCS), G-1, is the approval authority for retention under this section. (a) Retention must be in the best interest of the Army. (b) The specialty of the officer requesting retention must be short in total Army mobilization requirements and, for TPU officers, the specialty must be short of total Army wide TPU requirements. The Commander, U.S. Army HRC is responsible for determining which specialties meet this retention criteria using Mobilization Personnel Structure and Composition System data for mobilization requirements and the most recent total Army or TPU strength data, as appropriate. A TPU officer who does not possess a critical AOC which is short of total Army wide TPU requirements may apply for transfer to the IRR with concurrent retention as an IRR member. c. Requests for retention must arrive at U.S. Army HRC not later than 120 days before the officer's scheduled removal date. A request received late may provide the basis for denial of the request. 3. Title 10, USC, section 14509 (Separation at age 62: reserve officers in grades below brigadier general or rear admiral (lower half)) states each Reserve officer of the Army who is in an active status or on an inactive-status list and who reaches the maximum age (age 62) 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: (1) be transferred to the Retired Reserve if the officer is qualified for such transfer and does not request not to be transferred to the Retired Reserve; or (2) be discharged from the officer's Reserve appointment if the officer is not qualified for transfer to the Retired Reserve or has requested not to be so transferred. 4. Title 10, USC, section 12686 (Reserves on active duty within two years of retirement eligibility: limitation on release from active duty) states under regulations to be prescribed by the Secretary concerned, which shall be as uniform as practicable, a member of a Reserve component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system (other than the retirement system under chapter 1223 of this title), may not be involuntarily released from that duty before he becomes eligible for that pay, unless the release is approved by the Secretary. 5. AR 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. Chapter 7 provides for SSBs. a. Paragraph 7-2 states the SSBs may be convened under Title 10, USC, section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters Department of the Army discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list (SSB required). (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). b. Paragraph 7-3 (Cases not considered) states an officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Officer Record Brier (ORB) or Official Military Personnel File (OMPF). It is the officer’s responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them. c. Paragraph 7-11, officers who discover that material error existed in their file at the time they were non-selected for promotion may request reconsideration. 6. AR 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) AR20210014677 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1