MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 October 1998
         DOCKET NUMBER: AC97-08189A

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Loren G. Harrell		Director
Ms. Deborah L. Brantley		Analyst

The following members, a quorum, were present:

Ms. June Hajjar		Chairperson
Mr. Fred K. McCoy		Member
Ms. Shirley L. Powell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records
         Exhibit B - Military Personnel Records (including advisory opinion,
         if any)

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APPLICANT REQUESTS: In effect, that his retirement date be changed from
31 May 1994 to 30 September 1994 [there appears to be a typographical error in portions of his request where he indicates 1996 vice 1994] in order that he be allowed to use his accumulated leave, or in lieu of being restored to active duty for that purpose, he asks that he be “paid the equivalent according to law and regulation.”

APPLICANT STATES: Via counsel, that in January 1994 his servicing personnel office “discovered” that he had more than 24 years of active duty which exceeded “the cut-off newly established by Congress for the grade of E-8.” He notes that in February 1994 action was begun to retain him beyond his retention control point. He states the Commanding General at Fort Bliss recommended, and the Total Army Personnel Command (PERSCOM) approved a retirement date of 31 May 1994. However, the applicant contends that it was the Commanding General’s intention that he (the applicant) be given sufficient time to organize his personal affairs and transition out of the Army properly. The applicant notes that Fort Bliss’ “policy is to begin retirement out-processing 180 days before the expected retirement date” but because he was not notified until early March 1994, his out-processing time was reduced to 121 days.

The applicant states that he “did not receive the right to begin clearing until
12 April 1994” and while he signed out on 47 days of transition leave on 14 April 1994 he was ordered to return to Fort Bliss on 15 April 1994 when his “commander learned that he had not personally cleared….” He notes, however, in spite of the fact that he remained at Fort Bliss until his retirement day he was “charged the entire 47 days” of leave. He states he was not cleared from government housing until 15 June 1994.

The applicant maintains, in effect, that he should not be punished for having to retire and that the 31 May 1994 retirement date “proved insufficient and unrealistic” and that appropriate action should be taken to “restore the lost benefits by adjusting his retirement date and paying him the lost pay and allowances” and specifically requests payment of a housing allowance for the month of May 1994.

Included with the applicant’s request is a copy of a March 1996 memorandum from Fort Bliss outlining the procedures for retirement processing.

EVIDENCE OF RECORD: The applicant's military records show:

He entered active duty on 16 October 1969 and served continuously. He was promoted to pay grade E-8 in June 1986.

Although the applicant’s records do not contain a complete copy of documents associated with his retirement processing they do contain an 18 February 1994 endorsement from the Commanding General at Fort Bliss to the PERSCOM. The endorsement notes the applicant “was held beyond RCP erroneously pending receipt of the SGM list” and that as such he “did not focus on a retirement date.” (Note: The applicant’s record was submitted in June 1993 for consideration by an E-9 board.) The endorsement noted, however, that the applicant’s request for retention “does not qualify as an extreme hardship” but recommended a retirement date of 31 May 1994 in order for the applicant to have sufficient time to transition and organize his personal affairs.

A 10 March 1994 endorsement from PERSCOM to Fort Bliss authorized publication of involuntary separation orders for the applicant with an effective date not later than 1 June 1994 and that he would be “entitled to all separation benefits, less separation pay.” Orders assigning the applicant to the transition point at Fort Bliss for the purpose of separation processing were published on
14 March 1994.

On 31 March 1994 the applicant applied for voluntary retirement with an effective date of 1 June 1994. Retirement orders were published on 4 April 1994 and orders amending his assignment to the transition point for the purpose of retirement, as opposed to involuntary separation, were published on 12 April 1994.

The applicant completed a transition leave form request on 14 April 1994 to commence 47 days of transition leave effective 15 April 1994. (Note: He had a total of 77 days of leave accumulated and had previously been paid for 30 days of accumulated leave.) The leave form indicates he departed on leave on
15 April 1994 but returned on 16 April. He was “charged” with one day of leave according to the document.

On 31 May 1994 the applicant was released from active duty and his name was placed on the retirement rolls effective 1 June 1994. At the time of his retirement he had 24 years, 7 months, and 15 days of active Federal service. At the time of his retirement, according to his final performance evaluation report, he was assigned as the Housing Assignment/Termination NCOIC at the Fort Bliss Installation Housing Office. His address following retirement, and the address at which he was residing when he submitted his 1997 application, is in El Paso, Texas outside Fort Bliss.

In January 1992 Department of the Army announced that the retention control points for various grades in the Army would be changed as the Army executed its mission to downsize. The RCP for individuals in pay grade E-8 was reduced from 27 to 24 years effective 1 February 1992. Soldiers who were beyond the new RCP were required to separate, or apply for voluntary retirement in lieu of involuntary discharge, not later than 1 September 1992.

Telephonic information obtained by a member of the Board’s staff from officials at the Total Army Personnel Command indicated that an E-9 promotion consideration board convened on 3 August 1993 and adjourned on 19 August 1993. Results of the selection board were released on 2 December 1993.

The 1996 memorandum regarding retirement processing at Fort Bliss, included with the applicant’s request, indicates that soldier’s should attend a pre-retirement briefing at least 180 days before separation or the start of transition leave and that ten days is normally allocated for installation clearance, not including the time required for packing and shipment of household good/hold baggage and clearing quarters.

Statutory requirements preclude pay for unused leave in excess of 60 days during a soldier’s entire career.

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 evidence indicates the applicant reached his retention control point on
16 October 1993. There are no provisions for retaining individuals beyond their RCPs for the purpose of promotion boards and it appears the applicant’s servicing personnel office attempted to rectify this mistake in February 1994 when they obtained authorization to involuntarily separate the applicant. It also appears that once steps were taken to involuntarily separate the applicant he realized an involuntary separation would deny him retirement benefits and hence he submitted an application for voluntary retirement.

2. Contrary to the applicant’s contention, the “new” retention control point for individual’s in pay grade E-8 was announced in January 1992 with an effective date of 1 February 1992, which was nearly 2 years prior to the applicant attaining 24 years of service. The applicant should have been well aware that he was approaching his RCP and as a senior NCO was responsible for the management of his career. His decision to take a “wait and see” attitude regarding promotion selection was his decision and he should not fault his servicing personnel office for the situation that resulted from his decision to not prepare adequately.

3. Additionally, the Board notes the “policy” at Fort Bliss was not that soldiers begin “out-processing” 180 days prior to retirement but rather that they attend a pre-retirement briefing “at least 180 days before separation….” Only 10 days were “normally” allocated for installation clearance.

4. The Board notes the applicant was the NCOIC of the housing assignment and termination office and as such should have been intimately familiar with the process, including the time required for clearing government quarters. The fact that his quarters were not terminated until June explains why he did not receive a housing allowance for the month of May.

5. The applicant’s records indicate that he was paid for a total of 60 days of unused leave during his career (30 days at the time of retirement and 30 days at an earlier point in his career). Hence, while it appears he may have been charged for the 47 days of “transition” leave he states he did not take in reality those days were merely “lost” leave as he, based on statutory requirements, could not be paid beyond the 60 day total.

6. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7. In view of the foregoing, there is no basis for granting the applicant's request.

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

__JH____ __FKM__ __SLP___ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director