AR20150009485

BOARD DATE: 12 April 2016

DOCKET NUMBER: AR20150009485

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

___x_____ ___x_____ ___x__ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

BOARD DATE: 12 April 2016

DOCKET NUMBER: AR20150009485

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

___________x______________
CHAIRPERSON

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.

BOARD DATE: 12 April 2016

DOCKET NUMBER: AR20150009485

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).

THE APPLICANT’S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests reinstatement in the active U.S.Army Reserve.

2. The applicant states:

* he was discharged from the U.S.Army Reserve due to reaching his maximum allowable age
* his mandatory removal date (MRD) was 28November 2014
* his request for extension was not processed on time, for which he takes full responsibility
* he joined the Army late in life after 25years of private practice as a family physician
* it was long his desire to serve his country and he joined the Army on 13October 2008 after retiring from private practice
* he originally signed for an 8-year commitment, but an outstanding civilian opportunity in emergency medicine became available so he transitioned from the Regular Army to the U.S.Army Reserve in April 2013
* he was diagnosed with prostate cancer during his out-processing from the Army and ordered back to active duty with assignment to the Warrior Transition Battalion
* after completing surgery and radiation treatment, he was medically cleared for duty and transitioned back into the U.S.Army Reserve in March 2014
* he was not familiar with Reserve customs and duties at the time
* while acclimating to his new unit, studying for family practice recertification boards, and assisting in organizing medical activities for the unit’s 2-week training, he did not submit his request for an age waiver and extension to serve beyond his MRD until September 2014
* he was selected for promotion to colonel/O-6 and was in the process of securing enrollment in Intermediate Level Education when he was notified of his discharge from the U.S.Army Reserve due to age limitations
* he has been working diligently with CaptainM____ from the U.S.Army Human Resources Command to resolve the issue, but CaptainM____ suggested he appeal directly to the Army Review Boards Agency
* he prays his request for reinstatement is strongly considered
* he has no residual effects from the prostate cancer and is physically fit
* he jogs 4miles per day and has always been able to exceed the minimum requirements for the push-up and sit-up events of the Army Physical Fitness Test
* he requests a personal appearance before the Board to plead his case

3. The applicant provides:

* U.S.Army Installation Management Command Orders028-0252, dated 28January 2013
* DDForm214 (Certificate of Release or Discharge from Active Duty), covering the period 13October 2008 through 28April 2013
* U.S.Army Human Resources Command OrdersA-05-307764, dated 28May 2013
* U.S.Army Installation Management Command Orders036-0257, dated 5February 2014
* U.S.Army Human Resources Command memorandum, dated 5February 2014, subject: Request for Early Release from Active Duty
* U.S.Army Installation Management Command Orders056-0266, dated 25February 2014
* DDForm214 covering the period 29May 2013 through 7March 2014
* Fiscal Year 2014 Colonel, Army Medical Department (AMEDD), Promotion Selection Board Results by Competitive Category, release date 9September 2014
* U.S.Army Human Resources Command Form249-E (Chronological Statement of Retirement Points), dated 30September 2015
* Headquarters, U.S.Army Reserve Command Orders14-332-00013, dated 28November 2014
* DDForm215 (Correction to DDForm214), dated 15August 2015

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2. The applicant was appointed as an AMEDD officer in the Regular Army on 13October 2008 at age53.

3. On 28April 2013, he was honorably released from active duty due to completion of required active service and transferred to the U.S.Army Reserve Control Group (Reinforcement). His DDForm214 shows he completed 4years, 6months, and 16days of net active service during this period.

4. He was ordered to active duty for a period of 179days effective 29May 2013 for the purpose of medical extension with assignment to Headquarters, Warrior Transition Battalion, FortBragg, NC.

5. On 7May 2014, he was honorably released from active duty due to the completion of required active service and transferred to the 7236thU.S.Army Medical Support Unit. He completed 9months and 9days of net active service during this period.

6. On 9September 2014, he was selected for promotion to the rank of colonel by the Fiscal Year 2014 Colonel AMEDD Promotion Selection Board.

7. His Chronological Statement of Retirement Points, dated 30September 2015, shows he was credited with 6years, 1month, and 18days of qualifying service for retirement.

8. On 30November 2014, he was discharged from the U.S.Army Reserve due to reaching his MRD for the maximum allowable age of 60. Although he claims to have submitted an exception to policy request in September 2014 to enable him to serve beyond age60, he has not provided a copy of the request and it is not in his available records for review.

9. An advisory opinion was obtained from the Chief, Health Services Division, U.S.Army Human Resources Command, dated 29 October 2015, wherein she states:

* the applicant’s request for reinstatement to the U.S.Army Reserve cannot be accommodated by the U.S.Army Human Resources Command
* the applicant’s discharge was not the result of an administrative error and did not effectuate an injustice
* he was appropriately discharged for reaching the maximum age for service in accordance with Army Regulation140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), paragraph7-3, which states Soldiers will be removed from active service when they reach age60
* an exception to removal for maximum age existed as an option for the applicant as an AMEDD officer, but he failed to request extension of his MRD prior to his discharge
* requests for retention must arrive at the U.S.Army Human Resources Command not later than 120days before the officer’s scheduled removal date

10. The applicant was provided a copy of the advisory opinion on 9November 2015 and afforded an opportunity to submit comments in response. He did not do so.

REFERENCES:

1. Army Regulation140-10 provides policy and procedures for assigning, attaching, removing, and transferring U.S.Army Reserve Soldiers.

a. Soldiers assigned to the Selected Reserve, Individual Ready Reserve, and Standby Reserve who are removed from active status for length of service, maximum age, nonparticipation, nonselection for promotion, failure to complete military education requirements, non-acceptance of assignment, and theological students failing to qualify for the Chaplain Branch will be removed from active status and discharged or transferred to the Retired Reserve. Transfer to the Retired Reserve is authorized when requested by eligible Soldiers.

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 their statutory maximum age. Age60 is the maximum age for general officers, field and company grade officers, commissioned warrant officers, Soldiers having 20 or more years of qualifying Federal service, and enlisted Soldiers.

c. Removal from an active status for the aforementioned reasons is mandatory unless an exception is authorized. Policy authorizes an exception for the retention of Reserve Component officers in an active status in certain AMEDD areas of concentration until age68. An AMEDD officer who meets the applicability criteria may be retained beyond his or her MRD for age or for length of service. 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. For troop program unit officers, the specialty must be short of Total Army-wide troop program unit requirements.

d. Requests for retention must arrive at the U.S.Army Human Resources Command not later than 120days before the officer’s scheduled removal date. A request received late may provide the basis for denial of the request.

DISCUSSION:

1. The applicant’s request for reinstatement in the U.S.Army Reserve in an active status was carefully considered.

2. The evidence of record shows he was appropriately discharged from the U.S.Army Reserve due to reaching his MRD at age60.

3. While AMEDD officers are authorized to request an extension to their MRD for both age and length of service, a formal request for extension must be submitted to the U.S.Army Human Resources Command and received by that agency 120days prior to the officer’s MRD.

4. According to the applicant’s own statement, he did not submit a request for extension of his MRD until September 2014. Although this packet is not available for review to corroborate his exact date of submission or the date it was received by the approval authority, it is clear from his own statement as well as the written opinion from the U.S.Army Human Resources Command that a request for extension was not submitted or received 120days prior to his discharge from the U.S.Army Reserve.

5. There is no evidence of an error or injustice involving his discharge from the U.S.Army Reserve.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150009485

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150009485

6

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2