2.  The applicant requests reinstatement to active duty or as an alternative, that he be granted early retirement under the Voluntary Early Retirement Program (VERP).

3.  The applicant states, in effect, that he was unjustly denied reenlistment when his commander vindictively imposed nonjudicial punishment (NJP) against him and suspended the punishment of extra duty for a period of 60 days.  He goes on to state that had the commander allowed him to perform the extra duty, he would have qualified for reenlistment afterwards.  He further states that he was never formally barred from reenlistment, but was involuntarily separated from the service with full separation pay.  He also states that he subsequently learned of the VERP which allowed for 15-year retirements.  He continues by stating that he contacted Reserve personnel officials and discussed his situation.  He was then informed that he should not have been authorized full separation pay and was subsequently informed that he owed in excess of $19,000 that was overpaid to him.  He contends that not only was it unjust to deny him reenlistment, there was also no basis for Department officials to recoup his separation pay.

4.  The applicant’s counsel contends, in effect, that there was no basis to deny the applicant reenlistment when his overall record of service indicates a record of excellent service. 

5.  The applicant’s military records show after serving 9 years, 3 months, and 2 days of total active service, he reenlisted on 25 November 1985 for a period of 6 years, while serving in the pay grade of E-7.

6.  On 13 August 1991, while stationed in Germany, a suspension of favorable personnel actions (flag) was initiated against the applicant for an adverse action.

7.  On 20 September 1991 NJP was imposed against the applicant for being drunk and disorderly on 10 August 1991. His punishment consisted of a forfeiture of $910.00 for 1 month and 45 days extra duty (suspended until 19 December 1991).  The applicant did not appeal the punishment.
8.  The applicant’s commander, on 24 September 1991, submitted a recommendation to bar him from reenlistment based on the aforementioned NJP.  However, there is no indication in the available records to show that the recommendation was ever formally finalized.  The flag was lifted on 18 November 1991 with the case being closed favorably.

9.  On 22 November 1991 the applicant was honorably discharged at his scheduled expiration of term of service (ETS) with authorization for full separation pay.  He also signed an agreement whereby he agreed to serve in the Ready Reserve for a period of 3 years as a condition of receiving separation pay.  He had served 15 years and 3 months of total active service and was issued a reentry code of RE-3.

10.  On 19 October 1993 a correction to DD Form 214 (DD Form 215) was issued to show that the applicant was only authorized one-half separation pay.

11.  In the processing of this case, an advisory opinion was obtained from the Total Army Personnel Command (PERSCOM).  It opined, in effect, that the applicant was denied reenlistment because he failed to reenlist within his reenlistment window and that it was within the commander’s prerogative to deny him reenlistment.  It further opined that the applicant was authorized full separation pay based on his involuntary separation and recommended that his request be denied.

12. The PERSCOM message number 93-164, dated 20 April 1993, announced the criteria for the fiscal year 1993 early retirement program (the first year the program was offered). It stated, in pertinent part, that soldiers with at least 15 years of active federal service (AFS) but less than 20 years of AFS, in selected pay grades and military occupational specialties, could apply for early retirement. It also stated that individuals who had already separated under provisions of any other voluntary or involuntary separation program were not eligible for early retirement.  In addition, the applicant’s pay grade and MOS was not one of the selected specialties offered the early retirement option.

13.  Army Regulation 601-280 prescribes the criteria of the Total Army Retention Program.  It states, in pertinent part, that the normal window for a Regular Army reenlistment not involving the cashing in of leave or fulfillment of a service remaining obligation is not earlier than 8 months prior to ETS and not later than 90 days prior to ETS. Paragraph 2-26 of that regulation governs the procedures for requesting waivers or exceptions to reenlistment policy.  It states, in pertinent part, that the approval authority for waivers/exceptions to reenlistment policy is the Retention Management Division of the PERSCOM.  It goes on to state that personnel are not authorized to reenlist outside of their normal reenlistment window (less than 90 days prior to their scheduled ETS) without PERSCOM approval unless they are reenlisting to meet a service remaining requirement.

CONCLUSIONS:

1.  The applicant was involuntarily discharged because he received NJP which was in effect until 18 November 1991 and constituted what amounted to a self-imposed bar to reenlistment which prevented him from reenlisting before he had less than 90 days prior to his ETS.

2.  The applicant’s contention that the commander unjustly denied him reenlistment by suspending the punishment is without merit.  The NJP was imposed as a result of the applicant’s own misconduct and the punishment was not disproportionate to the offense.  The Board notes that the applicant committed his offense on 10 August 1991, about 15 days before he would have had less than 90 days left before his ETS and would have required an exception to policy to reenlist.  Therefore, it is obvious that the applicant had ample time to reenlist during the first 5 months of his reenlistment window and yet chose not to do so. 

3.  The applicant was not offered the option of early retirement in 1991 because the program did not go into effect until fiscal year 1993.  Inasmuch as the early retirement program was available to personnel in selected pay grades and selected specialties other than those held by the applicant, he would not have been eligible to apply for the program had it been in effect.

4.  Therefore, the applicant was properly separated at his scheduled ETS with authorization for full separation pay.  However, the applicant’s records were incorrectly changed on 19 October 1993 to show that he was entitled to one-half separation pay instead of full separation pay. 

5.  Although the applicant was in effect barred to reenlistment, there was no formal bar to reenlistment imposed against the applicant that would qualify as a bar to reenlistment under the criteria established for one-half separation pay.  The self-imposed bar to reenlistment that resulted in the applicant being unable to reenlist prior to 90 days before ETS constitutes the applicant being involuntarily separated at his ETS with entitlement to full separation pay.  Therefore, it would be appropriate in this case to correct the applicant’s records to show his entitlement to full separation pay and to return any monies collected from him as a result of the 19 October 1993 change to his records reflecting his entitlement to one half separation pay.

6.  In view of the foregoing, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by showing that the individual concerned was entitled to full separation pay at the time he was honorably discharged on 22 November 1991; and

	b.  by returning to him any monies collected from him as a result of the 19 October 1993 correction to his records.

2.  That so much of the application as is in excess of the foregoing be denied.                

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON