MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 October 2002
         DOCKET NUMBER: AR2002072304

         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. Fred N. Eichorn		Chairperson
Ms. Shirley L. Powell		Member
Mr. Elzey J. Arledge, Jr.		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 his honorable discharge on 28 February 1993, be amended to reflect that he was retired with more than 15 years of service.

APPLICANT STATES: That the 15-year retirement became public law before the decision was made for his discharge. However, he was never afforded the opportunity for counseling on or provided information about the program before his separation, despite the fact that he had requested it and is now 30% disabled as a result of his service. Additionally, he contends that the report of separation (DD Form 214) he received in the mail after his separation is not the form he signed prior to departure from Fort Riley, Kansas, and contains incorrect separation codes.

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

He initially served as an Air Force cadet in the Air Force Academy from 5 July 1971 until he was honorably discharged upon his disenrollment on 16 February 1973.

He enlisted in the Regular Army on 13 January 1977, for a period of 4 years, training as an infantryman, assignment to Fort Riley, Kansas, and a cash enlistment bonus. He remained on active duty through a series of continuous reenlistments, reclassified to the military occupational specialty of a chemical operations specialist while serving in the pay grade of E-5 and was promoted to the pay grade of E-8 on 1 July 1990.

On 22 April 1992, the applicant was notified that the Calendar Year 1992 Command Sergeant Major Selection/Sergeant Major Promotion Board had determined that he should be barred from reenlistment under the Qualitative Management Program (QMP) based on the presence of a noncommissioned officer evaluation report (NCOER) and a letter of reprimand (LOR) in his Official Military Personnel File (OMPF), indicating deficiencies in performance and discipline. Both the applicant and his commander indicated that they would submit an appeal of the bar to reenlistment.

On 5 November 1992, the applicant was notified that a Department of the Army Standby Advisory Board had disapproved his appeal and that he must be separated from the service no later than 28 February 1993, under the provisions of Army Regulation 635-200, paragraph 16-8, due to “Reduction in Authorized Strength – Qualitative Early Transition Program.” It also directed that he be issued a Reentry (RE) Code of “4” and a Separation Code of “JCC”.

Accordingly, he was honorably discharged on 28 February 1993, under the provisions of Army Regulation 635-200, paragraph 16-8. He was issued a Separation Code of “JCC” and a RE Code of “4”. He had served 17 years, 9 months and 10 days of total active service and received one-half separation pay in the amount of $21,978.84.

A review of the applicant’s OMPF fails to show that the applicant ever appealed the NCOER to the Enlisted Standby Review Board (ESRB) or the LOR to the Department of the Army Suitability Evaluation Board (DASEB).

The Total Army Personnel Command (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. Personnel approved for early retirement will receive the same benefits as individuals with 20 years or more service, except that their retired pay will be reduced. 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. Additionally, personnel with a bar to reenlistment who had completed over 18 years of service could apply for separation under the Voluntary Early Retirement Program (VERP).

Title 10, United States Code, section 1293, implements the provisions of Public Law 102-484, dated 23 October 1992, which authorized a Temporary Early Retirement Authority (TERA). It provides, in pertinent part, that the purpose of the TERA was to provide the Secretary of Defense a temporary additional force management tool with which to effect the drawdown of military forces through fiscal year 1999. It also provided that an enlisted member with at least 15 years but less than 20 years could be retired for length of service. It further provided that the Secretary of each military department may prescribe regulations and policies regarding the criteria for eligibility for early retirement by reason of eligibility pursuant to this section and for the approval of applications for such retirement. Such criteria may include factors such as grade, years of service and skill.

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. Accordingly, the applicant was properly authorized to receive half separation pay based on his selection under the QMP.

3. The applicant’s contention that he should have been allowed to apply for retirement is without merit. The applicant had already been barred from reenlistment under the QMP and was separated well before the VERP was announced. Additionally, not only was the VERP not in effect at the time of his selection under the QMP, the program had not been implemented in the Army until almost 2 months after his discharge. The provisions of the VERP specify that it was for selected grades and specialties and was not retroactive for personnel previously separated under other programs. Therefore, even if he had qualified by grade and specialty, he would not be eligible by virtue of his having been separated prior to the implementation of the program.

4. The applicant’s contention that he was issued the incorrect separation and RE Code at the time of his separation, appears to be without merit. The applicant was issued the appropriate codes commensurate with the authority for his separation and absent evidence to the contrary, there appears to be no reason to change it at this time.

5. 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 this requirement.

6. 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

___fe ___ ___slp___ __eja____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072304
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/10/22
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 338	136.0000/15-YR RET
2.
3.
4.
5.
6.