MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 September 2002
         DOCKET NUMBER: AR2002071430

         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. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Donald P. Hupman, Jr.		Member
Mr. William D. Powers		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: That he be granted severance pay for over 12 years of service.

APPLICANT STATES: In effect, that he was unjustly barred from reenlistment under the Qualitative Management Program (QMP) and was denied any severance pay for his many years of service. He further states that the Reentry (RE) Code he was given at the time of separation indicates that he voluntarily left the service; however, such was not the case. He goes on to state that shortly before Congress approved the payment of severance pay, the Army hastily eliminated as many sergeants as they could through the QMP. As a result, he was subjected to a loss of income, bad credit due to repossessions and mental stress. He continues by stating that a review of his record will show that he did not warrant such an action and that he deserves severance pay for his service.

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

He enlisted in St. Louis, Missouri, on 2 May 1978 for a period of 3 years and training as a cavalry scout. He successfully completed his training and served as a cavalry scout in Germany until 1 November 1980, when he reenlisted for training as a traffic management coordinator. He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-5 on 23 January 1981.

On 4 June 1987, while assigned to Germany, nonjudicial punishment (NJP) was imposed against him by his battalion commander for driving under the influence (DUI) of alcohol. His punishment consisted of a reduction to the pay grade of E-4 (suspended for 2 months), a forfeiture of pay and extra duty. He did not appeal his punishment and the imposing commander directed that the Record of NJP (DA Form 2627) be filed in the performance fiche of his Official Military Personnel File (OMPF).

On 14 January 1988, the commanding general imposed an administrative letter of reprimand (LOR) on the applicant for his DUI offense. The applicant elected to submit a statement in his own behalf, whereas he requested that the LOR be filed in the restricted fiche of his OMPF, so as not to further hinder his career. After reviewing the applicant’s appeal, the commanding general directed that the LOR be filed in the performance fiche of the applicant’s OMPF.

On 10 October 1989, the Commander, Enlisted Records and Evaluation Center dispatched a memorandum to the applicant, who was at that time stationed at Fort Bragg, North Carolina. The memorandum informed him that the Calendar Year 1989 Master Sergeant/Sergeant QMP Selection Board had determined through a review of his OMPF, that he should be barred from reenlistment due to the presence of a Record of NJP and a LOR in his OMPF.

The applicant submitted an appeal of the bar to reenlistment under the QMP to the Department of the Army Standby Review Board (STAB) and his enlistment was extended for 28 days pending the outcome of his appeal. On 19 June 1990, the STAB disapproved his appeal and directed that he be discharged no later that 9 August 1990.

Accordingly, he was honorably discharged on 9 August 1990, under the provisions of Army Regulation 635-200, paragraph 16-8, due to reduction in authorized strength and the qualitative early transition program. He had served 12 years, 3 months and 8 days of total active service and was issued a RE Code of 2B.

A review of his OMPF shows that the documents that served as the basis for his bar to reenlistment under the QMP are the only derogatory documents in his file.

Army Regulation 635-200 serves as the separation authority for enlisted personnel. The regulation in effect at the time provided, in paragraph 16-8, that soldiers may be discharged or released from active duty, as appropriate, prior to the expiration of their term of service when budgetary or authorization limitation requires a reduction in enlisted strength as authorized by the Secretary of the Army. Early separation under this paragraph is for the convenience of the government and will be characterized as honorable.

Department of the Army Circular 635-92-1 outlines the eligibility criteria for separation pay and provides separation pay formulas as authorized by the Department of Defense Instruction 1332.29 dated 20 June 1991 and other Headquarters, Department of the Army guidance, resulting from Public Law 101-510, The National Defense Authorization Act for Fiscal Year 1991. The circular also illustrates the various types of separations that are either eligible or ineligible for separation pay. It states, in pertinent part, that separation pay is authorized for soldiers serving on active duty on 5 November 1990 who were involuntarily separated prior to completion of obligated service or who were denied reenlistment/continuation. Soldiers who are denied reenlistment are authorized one-half separation pay. It also states that in extraordinary circumstances, the Secretary of the Army may award full separation pay when the specific reason for separation and the overall quality of the soldier’s service have been such that denial of full pay would be clearly unjust. The program provided no provisions to apply the criteria retroactively to soldiers who separated prior to 5 November 1990.

Army Regulation 601-280 sets forth policy and prescribes procedures for denying reenlistment under the QMP. This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards. It is designed to (1) enhance quality of the career enlisted force, (2) selectively retain the best qualified enlisted soldiers to 30 years of active duty, (3) deny reenlistment to non-progressive and non-productive soldiers, and (4) encourage soldiers to maintain their eligibility for further service. The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram. Under the qualitative screening subprogram, records for grades E-5 through E-9 are regularly screened by the Department of the Army promotion selection boards. The appropriate selection boards evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted. Soldiers whose continued service is not warranted receive a QMP bar to reenlistment. Soldiers who are within 2 years of qualifying for retirement on the date of separation will not be separated under this provision unless directed by the Secretary of the Army.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the USAR. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes.

RE-4 applies to persons separated from last period of service with a nonwaivable disqualification and includes persons being separated with a Department of the Army bar to reenlistment. RE-2B indicates that a soldier was fully qualified to reenlist and chose not to do so. It is waivable, depending on the needs of the Army and the individual must wait at least 2 years before applying for a waiver.

A review of the Army Centralized Promotion Board Schedule shows that the Master Sergeant/E5 Promotion and QMP Board is traditionally conducted during the months of February and March each year and that they are scheduled a year in advance.

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 Department of the Army bar to reenlistment under the QMP was imposed in compliance with the applicable regulation with no indication of procedural errors which would tend to jeopardize his rights.

2. At the time the applicant separated from the service, there were no provisions to authorize severance pay to enlisted personnel and the implementing instructions that subsequently authorized severance pay to enlisted personnel, did not apply retroactively to the applicant’s separation date. Accordingly, the applicant was not and is not now entitled to receive severance pay for his service.
3. The Board has noted the applicant’s contentions that the Army tried to hastily separate personnel serving in the pay grade of E-5 before they would have to pay them severance pay and finds it to be without merit. The Board finds no evidence to suggest that the QMP Board was conducted out of its scheduled sequence.

4. The Board does agree that the applicant was issued an incorrect RE Code. The applicable regulation provides that persons with a Department of the Army bar to reenlistment will be issued a RE Code of 4. However, it has long been the policy of the Board that unless requested by the applicant, the Board will not make an individual worse-off than when they came to the Board. Therefore, unless the applicant requests that his RE Code be changed, the Board will not direct the change.

5. 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

___js____ __wdp __ __dh____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002071430
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/12
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 291	128.0800/SEV PAY
2.
3.
4.
5.
6.