RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:     20 December 2005
      DOCKET NUMBER:  AR20050004655


      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             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Jeanette McCants              |     |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 that his records be corrected to show that he
was retired by length of service instead of being discharged by reason of
expiration of his term of service (ETS).

2.  The applicant states, in effect, that a calculation error in his time
required for retirement and the effects of undiagnosed Post-Traumatic
Stress Disorder (PTSD) had a major impact on his being discharged by reason
of ETS instead of being retired by reason of length of service.  He
continues by stating that at his last reenlistment he reenlisted for enough
time to complete 20 years of service; however, it was discovered after he
reenlisted that a calculation error had been made and that he needed to
extend for some additional time.  He did not anticipate at the time that
his District Recruiting Commander would recommend him, a three-tour Vietnam
veteran, be discharged as a conscientious objector because of his religious
beliefs or that he would be reassigned to another unit as a result of the
decision of a Title 138 Review Board.  He continues by stating that given
his religious beliefs then and now, he felt his only option was to ETS for
fear of the unknown and believes that under the circumstances, reenlisting
or extending would have put the welfare of his family and the character of
his service at risk.  He also states that he did not receive proper
counseling nor was he offered early retirement, which would have benefited
the Army and prevented suffering by himself and his family.

3.  The applicant provides a two-page personal statement, a copy of his DD
Form 214, a copy of his Article 138 Complaint results, a Department of
Veterans Affairs (VA) letter explaining his diagnosed illnesses, and a
letter from his church pastor.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 May 1984.  The application submitted in this case is dated
24 March 2005.

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.  The applicant enlisted in Atlanta, Georgia, on 24 March 1965 for a
period of 3 years under the airborne enlistment option.  He completed his
basic and advanced individual training at Fort Gordon, Georgia, and his
airborne training at Fort Benning, Georgia, before being assigned to
Vietnam on 23 September 1965, for duty as an indirect infantry fire
crewman.  He completed his tour in Vietnam and was transferred to Fort
Campbell, Kentucky.

4.  He remained on active duty through a series of continuous reenlistments
and was promoted to the pay grade of E-7 on 12 November 1979.  His records
show that he performed the duties of a Hercules Missile Crewman, a heavy
truck driver, a helicopter mechanic/inspector, a clerk, a recruiter, and an
admin specialist throughout his career.  He served three tours in Vietnam
and two tours in Hawaii.

5.  On 19 December 1983, while serving as a recruiter/guidance counselor in
Hawaii, the Department of the Army, Office of The Judge Advocate General
(OTJAG) dispatched a letter to the applicant informing him that in response
to his 16 November 1983 letter regarding his Article 138 complaint, his
reassignment from the Recruiting Command was a proper relief from the
alternatives listed by the applicant.  The letter further stated that as
the decision by the commander appeared to have been fair and equitable, no
further action on his complaint was contemplated.

6.  On 17 May 1984, the applicant was honorably discharged on the
expiration of his term of service.  He had served 19 years, 1 month, and 23
days of total active service and was issued a Reentry Code of RE-1A.

7.  A review of the applicant’s records shows no indication that he
attempted to extend his enlistment or to reenlist to complete the required
service to attain 20 years of service for retirement.  There is also no
indication that he applied for retirement.

8.  The 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
the provisions of any other voluntary or involuntary separation program
were not eligible for early retirement (program was not retro-active).  The
Temporary Early Retirement Authority (TERA) was used as a temporary
drawdown measure and was only in effect until Fiscal Year 1999.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted on 24 March 1965 and would have had to have
served until at least 23 March 1985 in order to have served the minimum 20
years of active service to retire for length of service.  He had no breaks
in service or lost time during his service.

2.  Shortly before the applicant’s discharge, he had served approximately
10 years as a recruiter/guidance counselor.  Accordingly, it is reasonable
that the applicant would be aware of the amount of time he had served and
the amount of time he needed to attain the minimum retirement eligibility.

3.  The applicant’s contention that he was not properly briefed on the
procedures for applying for early retirement has been noted and found to be
without merit.  The TERA did not come into effect until 1993 and it was not
applied retroactively. Accordingly, he was not eligible then or now for
voluntary early retirement with less than 20 years of active Federal
service.

4.  There is no evidence in the available records to suggest that the
applicant would have been denied reenlistment at the time he was
discharged.  While the applicant has explained that he perceived that he
might not be able to continue to serve based on his newly acquired
religious beliefs, that was a decision that he made at the time and there
is no evidence to suggest that he could not have continued to serve until
he attained retirement eligibility.

5.  The applicant’s supporting documents have been noted.  However, they
are not sufficiently mitigating to warrant relief given the evidence in
this case, which suggests that the applicant made a conscious decision not
to continue his service to meet retirement eligibility.

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 this requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 May 1984; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 16 May 1987.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JH___  __RB____  _JM____  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.




            ____James Hise_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050004655                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051230                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |338/RET                                 |
|1.136.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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