RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           29 July 2004
      DOCKET NUMBER:  AR2004100747


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Mr. Thomas E. O'Shaughnessy       |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his records be corrected to
change his separation with severance pay to a 15-year retirement.

2.  The applicant states that he believes he should have been allowed to
retire under the Early Retirement Program that had been implemented prior
to his separation on 20 May 1993.  Instead, he was informed that he did not
qualify for the program because he was on active duty under Title 32, U. S.
Code.  He was told the program only applied to those on active duty under
Title 10, U. S. Code.  Subsequently, he was informed the National Guard
Bureau had implemented a "Stop-Loss" order to provide time to determine how
to appropriately deal with Guardsmen losing their positions due to the
planned force reductions.  He asked about that program but was told he did
not qualify since he was on active duty.  He fell through a crack in the
system that he believes was unjust and also unintentional.

3.  The applicant provides no supporting evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 May 1993.  The application submitted in this case is dated
10 November 2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  After having had prior enlisted service in the Army National Guard
(ARNG), the applicant was commissioned in the ARNG in 1970.  He was
promoted to major effective 1 April 1985.

4.  On 29 March 1986, the applicant was ordered to full time duty (State)
in an Active Guard Reserve status with the Delaware ARNG under Title 32, U.
S. Code.

5.  The applicant's notification of eligibility for retired pay at age 60
(his 20-year letter) is dated 18 December 1986.

6.  On 20 May 1993, as a result of twice not being selected for promotion
to lieutenant colonel, the applicant was released from active duty.  He had
completed a total of 15 years, 7 months, and 15 days of creditable active
service and over 27 years of service for pay.  On the same date, he was
discharged from the ARNG and transferred to the Retired Reserve.

7.  Title 10, U. S. Code, section 14506 states that a Reserve major who has
failed of selection for promotion to the next higher grade for the second
time shall be removed from the Reserve active-status list on the first day
of the month in which the officer completes 20 years of commissioned
service.

8.  Section 4403 of the National Defense Authorization Act (NDAA) for
Fiscal Year 1993 (FY 93) provided the Secretary of Defense a temporary
additional force management tool with which to effect the drawdown of
military forces through 1999.  During the active force drawdown period, the
Secretary of the Army could authorize a member with at least 15 years but
less than 20 years of creditable active service a length of service
retirement.

9.  The April 1993 message implementing the FY 93 Early Retirement Program
stated that the program applied to certain categories of Regular Army
enlisted soldiers and active duty (Title 10) officers with more than 15
years but less than 20 years of active Federal service.  Army competitive
category majors, in specified branches or functional areas, with a date of
rank of 1 December 1986 or earlier, and who were at least twice nonselected
for promotion to lieutenant colonel were eligible to apply provided they
had at least 18 years but less than  20 years of active Federal service.

10.  The Office of the Deputy Chief of Staff for Personnel G-1 and the
National Guard Bureau were queried concerning Early Retirement Program
implementing messages for Title 32, U. S. Code active duty personnel.  No
implementing messages or any other guidance for these personnel were
discovered and the available institutional memory in those organizations
failed to verify that such a program had been implemented.

11.  Title 10, U.S. Code, section 12731a was the temporary special
retirement qualification authority.  It provided that, during the drawdown
period, a member
of the Selected Reserve who had completed at least 15 years, and less than
    20 years, of qualifying service could, upon the request of the member,
be transferred to the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was on active duty under Title 32, U. S. Code when he was
twice nonselected for promotion to lieutenant colonel.

2.  The available Early Retirement Program implementing messages show that
the program was available to officers on active duty under Title 10, U. S.
Code.  Searches at the pertinent offices failed to discover any
implementing guidance showing the program also applied to officers on
active duty under Title 32, U. S. Code.

3.  It is noted that the FY 93 Early Retirement Program implementing
message allowed certain Army competitive category majors who were at least
twice nonselected for promotion to lieutenant colonel to apply for early
retirement only if they had at least 18 years of active Federal service.
The applicant had only    15 years of active Federal service at the time he
separated.

4.  The applicant did not qualify for retirement under the temporary
special retirement qualification authority of Title 10, U.S. Code, section
12731a as that authority provided for a Reserve retirement upon completion
of at least 15, but less than 20, years of qualifying service.  The
applicant had already received his 20-year letter.

5.  The burden of proof is on the applicant and he has failed to meet his
burden of proof to show that his separation, without entitlement to early
retirement, was unjust.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 May 1993; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 19 May 1996.  However, the applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jns___  __rtd___  __teo___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ______________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100747                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040729                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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