APPLICANT REQUESTS: Correction of his records to show that he was retired in the pay grade of E-6 effective 1 December 1992.
APPLICANT STATES: That he should be retired in the pay grade of E-6 effective 1 December 1992. He claims that he was originally informed that because he had previously obtained the rank of E-6 during an earlier enlistment, he would be able to retire in the pay grade of E-6. He further states that orders were originally published in March 1992 which indicated that he was to retire in the pay grade of E-6. However, in August 1992, after he had departed on terminal leave, his orders were changed to reflect that his retired grade would be in the pay grade of E-5. He goes on to state that his decision to apply for retirement was based on his being advised that he would be receiving retired pay as an E-6. Otherwise, he could have opted to separate under the Voluntary Separation Incentive Program (VSIP) at a much earlier date instead of waiting around to obtain retirement eligibility.
EVIDENCE OF RECORD: The applicant's military records show:
After serving 15 years, 10 months, and 22 days of total active service, the applicant was honorably released from active duty in the pay grade of E-6 and transferred to a USAR Troop Program Unit (TPU) in Massachusetts on 20 January 1988. He was subsequently transferred to the USAR Control Group (Reinforcement) on 24 June 1988 due to unsatisfactory performance with his TPU.
On 4 October 1988 the applicant enlisted in the Regular Army in the pay grade of E-4. He was promoted to the pay grade of E-5 on 1 September 1989.
Orders were published on 2 March 1992 which authorized the applicant to retire in the pay grade of E-6 effective 1 December 1992. On 19 August 1992, new orders were published which changed his retirement grade to E-5.
Accordingly, the applicant was honorably released from active duty on 30 November 1992. His name was placed on the Retired List in the pay grade of E-5 effective 1 December 1992. He had served 20 years and 18 days of total active service.
In the processing of this case, an advisory opinion was obtained from the Total Army Personnel Command (PERSCOM) which opined, in effect, that the applicant accepted the grade (E-4) offered to him upon enlistment. This pay grade was established by a grade determination accomplished at the time he enlisted on 4 October 1988. When he applied for retirement he was serving in the pay grade of E-5. Consequently, he is not entitled to retire in the pay grade of E-6 until such time as he has a total of 30 years of active service combined with his service on the retired list.
Title 10, United States Code, section 3964 provides that each warrant officer and enlisted member of the Regular Army, is entitled, when his or her active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest temporary grade in which he or she served on active duty satisfactorily, as determined by the Secretary of the Army.
On 20 December 1991 the Department announced the provisions of the National Defense Authorization Act for FY 1992, which established the VSIP and two separation incentive options. Both separation incentive options, the Voluntary Separation Incentive (VSI) and the SSB, were offered jointly. Service members who were approved for the VSIP had the option of receiving either the VSI or the SSB. The 20 December 1991 message also set forth the specific criteria for VSIP eligibility and provided that in order to be eligible for separation under the VSIP, soldiers had to have served at least 5 years of continuous active duty immediately preceding the date of separation.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The applicant was initially improperly informed that he would be eligible to retire in the pay grade of E-6. However, regardless of that error, the applicant had only two options at the time he had reached 18 years of service. His two options were to extend his enlistment to meet the service remaining requirement to qualify for retirement or to separate from the service at his scheduled expiration of term of service, possibly with the benefit of separation pay.
2. The applicants contention that his decision to retire was based on his being informed that he could retire as an E-6 appears to be without merit. The applicant was not eligible to separate under the VSIP by virtue of not having served 5 years of continuous active duty preceding the date of his separation. He could not have met the 5-year requirement even if he went to his mandatory retirement date. Therefore, the administrative error, though unfortunate, did not cause him to lose any monetary benefits or entitlements that he would have otherwise been eligible to receive.
3. It appears that the applicant will be eligible for advancement on the retired list to the pay grade of E-6 when he attains a total of 30 years of combine active service and service on the retired list.
4. Inasmuch as the applicant, by law, was not entitled to retire in a grade higher than he held preceding the date he was placed on the retired list, there is no basis to approve his request. To do so would give him a benefit not afforded others in similar circumstances.
5. In view of the foregoing, there is no basis to approve the applicants.
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
DENY APPLICATION
Karl F. Schneider
Acting Director
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