RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 July 2007
	DOCKET NUMBER:  AR20070003727


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Jeanette R. McCants

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to read retired at the staff sergeant/pay grade E-6 pay level.

2.  The applicant states that at the time of his discharge, the Army was allowing 15-year early retirement for Soldiers with his military occupational specialty (MOS) 96R (Ground Surveillance Systems Specialist).  He states he was not allowed to retire.

3.  The applicant did not provide any documentation in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 25 June 1994.  The application submitted in this case is dated 2 March 2007.

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 limitations 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's records show that he enlisted in the Regular Army on 26 June 1979.  He completed basic combat and advanced individual training and was awarded the MOS 71L (Clerk Typist). 

4.  Headquarters, United States Army Garrison, Fort Huachuca, Arizona, Orders Number 198-93, dated 12 October 1988, awarded the applicant primary MOS 96R and secondary MOS 71L effective 28 October 1988.

5.  Prior to a 1994 incident, the applicant had a “clean” record -- no record of disciplinary actions; completion of the Primary Leadership Development Course, the Basic Non-Commissioned Officer Course; promotion to Staff Sergeant E-6 on 1 November 1988; one overseas tours; award of the Army Achievement Medal (2d Oak Leaf Cluster), the Army Commendation Medal (3rd Oak Leaf Cluster), and the Army Good Conduct Medal (4th Award).

6.  On 15 December 1993, the applicant was relieved from his drill sergeant duties and item 4 (Assignment Consideration) of his DA Form 2-1 (Personnel Qualification Record) was annotated with the entry "Not eligible for future drill sergeant dy [duty] in accordance with para [paragraph] 8-20a(3), AR [Army Regulation] 614-200 [Enlisted Assignments]."

7.  On 19 January 1994, the applicant was reduced from staff sergeant/pay grade E-6 to sergeant/pay grade E-5 in accordance with chapter 6 of AR 600-8-19 (Enlisted Promotions and Reductions) with an effective date of 14 January 1994.

8.  On 25 June 1994, the applicant was honorably discharged from the Army in accordance with paragraph 16-8 of AR 635-200, by reason of reduction in force. The DD Form 214 he was issued confirms he completed a total of 15 years of creditable active military service.

9.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 establishes policy and prescribes procedures for separating Soldiers prior to expiration of enlistment or fulfillment of active duty obligation when specifically authorized.  Specific categories include reduction in force, strength limitations, or budgetary constrains.

10.  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 initial active force drawdown period (23 October 1992 and ending on 1 October 1999), the Secretary of the Army may authorize an enlisted member with at least 15 but less than 20 years of creditable service a length of service retirement.

11.  The July 1993 message, implementing the Fiscal Year 1994 Regular Army Enlisted Early Retirement Program listed eligible MOSs; the U. S. Total Army Personnel Command (PERSCOM) determined which applications would be approved based upon force structure and the best interest of the Army.  As a condition for early retirement, Soldiers must have been enrolled in the Public and Community Service (PACS) personnel registry.  (The intent of the early retirement provisions for PACS legislation was to authorize active duty personnel who were approved for early retirement to accrue additional military retirement credit if they took critical jobs).


12.  The July 1993 message, implementing the Fiscal year 1994 Regular Army Enlisted Early Retirement Program listed MOS 96R at the staff sergeant/pay grade E-6 level and with a minimum of 17 years of creditable active duty service (as of 31 August 1994) as eligible for early retirement.

13.  Military Personnel Message Number 92-223, Subject: Fiscal Year 1994 early Retirement Program prescribed eligibility requirements for early retirement for Regular Army enlisted Soldiers.  It stated that early retirement was not an entitlement and would be offered only to Soldiers who met the strict eligibility requirements outlined in this message.  Individuals approved for early retirement must have departed active duty no later than 31 August 1994.  As a condition for early retirement, individuals must have been enrolled in the Public and Community Service (PACS) personnel registry.  Employment with such an organization must have occurred between the date of early retirement and the date on which the member would have otherwise completed 20 years of active military service.  Soldiers must have held a specified MOS to be eligible to apply for retirement.

14.  The Temporary Early Retirement Act (TERA) was enacted by Congress on 23 October 1992, in the National Defense Authorization Act of Fiscal Year 1992, to assist in the military draw down of forces, to permit selected military members to retire early between 15 and 20 years of service and accrue additional military retirement points through service in military Reserve Components or employment in qualifying public or community service organizations.  The Secretaries of the respective services designated the ranks and military specialties that were eligible to apply according to the needs of the service.  Retirement under this program was not a right, it is granted on an individual basis according to the requirements of the service.  The TERA program ended on 30 September 2001.

15.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 June 1994; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 24 June 1997.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show early retirement.

2. The applicant's records show that he held the rank of sergeant/pay grade E-5 at the time of his discharge from the Army.  Therefore, he did not meet the criteria outlined in the 1993 message for early retirement.  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.
 
4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 June 1994; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 24 June 1997.  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

__jrm___  __tmr___  __jcr___  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.



							Jeanette R. McCants
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070003727
SUFFIX

RECON

DATE BOARDED
20070731
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
136.0500
2.

3.

4.

5.

6.