IN THE CASE OF:	  

		BOARD DATE:	       23 APRIL 2009

		DOCKET NUMBER:  AR20090000013 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records to show he retired under the 15-year early retirement program instead of honorably discharged under the Fiscal Year 1992 (FY92) Enlisted Voluntary Transition Program. 

2.  The applicant states that the early retirement program was not offered at the time he elected separation under the FY92 Enlisted Voluntary Transition Program with 17 years of creditable active duty service.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 6 October 1992, and a self-authored statement, dated 9 December 2008, in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant’s records show he enlisted in the Regular Army on 4 August 1975.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76Y (Supply Specialist).  He subsequently executed a series of extensions and/or reenlistments in the Regular Army and attained the rank/grade of staff sergeant (SSG)/E-6.

3.  On 15 January 1992, the applicant requested separation under the provisions of the FY92 Enlisted Voluntary Early Transition Program with a Special Separation Benefit (SSB).  In his request, he acknowledged that his request was a voluntary action and that he fully understood the benefits and restrictions of the separation method.  He further acknowledged that he understood that if his request was approved, it could only be withdrawn for reasons of extreme personal hardship and that a request for withdrawal would be approved by the Department of the Army.  He also indicated that he would complete the separation transition counseling checklist and accept pre-transition counseling pertaining to post service employment, job assistance, extended benefit entitlement, and relocation assistance.

4.  On 6 October 1992, the applicant was honorably discharged from active duty under the provisions of Army Regulation 635-200, paragraph 16-8, under the FY92 Voluntary Early Transition Program and was transferred to the U.S. Army Reserve Control Group.  The DD Form 214 he was issued shows he completed 17 years, 2 months, and 3 days of creditable active military service.  

5.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharges of enlisted personnel.  Chapter 16 governs selected changes in service obligations.  Paragraph 16-8 covers eligibility for early separation due to reduction in force, strength limitations, or budgetary constraints.  It states that soldiers may be separated prior to expiration of term of service or period for which ordered to active duty when specifically authorized. 

6.  Military Personnel (MILPER) Message (MSG) Number 92-85 contained the implementing instructions for the FY92 Enlisted Voluntary Early Transition Program.  It stated, in pertinent part, that soldiers approved for separation with a SSB would be paid a lump sum benefit equal to 15 percent of the basic monthly pay received on the date of the Soldier’s separation, multiplied by 12 and multiplied again by the Soldier’s years in service.  MILPER MSG 92-85 also stipulated, in pertinent part, that Soldiers separating with a SSB would also be entitled to extended health benefits for 120 days and extended commissary and exchange benefits for 2 years after separation.  This message that governed the FY92 Enlisted Voluntary Incentive Program and accompanying transition benefits provided no authority or suggestion that members would be entitled to continued active duty pay and allowances subsequent to their separation.

7.  MILPER Message Number 93-164, dated 20 April 1993, prescribed eligibility requirements and application procedures for early retirement for Regular Army Soldiers.  It stated that early retirement was not an entitlement and it was offered to select enlisted and officer personnel who met strict eligibility criteria outlined in this message and/or supplemental updates.  The Temporary Early Retirement Authority (TERA) was used to retire members whose skills were excess to the Army’s short term and long term needs.  Individuals who had already separated under provisions of any other voluntary or involuntary separation program were not eligible for early retirement.  It provided, in pertinent part, that Soldiers whose application for separation under the Voluntary Separation Incentive/Special Separation Benefit (VSI/SSB) programs was approved on or after 3 May 1993 could not convert to early retirement unless they were currently on active duty in the Regular Army at the time of the announcement of this message; whose separation under the VSI/SSB programs was approved prior to 3 May 1993; who had at least 15 years active federal service as of 31 August 1993; and whose MOS, as of 31 August 1993 or earlier, was listed in this message.  Enlisted Soldiers must have had-without exception-held a primary MOS and grade listed in this message. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant voluntarily requested separation from active duty under the SSB option of the FY92 Voluntary Early Transition Program.  His request was approved and he was discharged from active duty on 6 October 1992 with 17 years, 2 months, and 3 days of active Federal service and with entitlement under SSB to a lump sum payment based on his years of service and pay grade.

2.  The evidence of records further shows the applicant applied for separation under the FY92 Voluntary Early Transition Program prior to implementation of the Temporary Early Retirement Authority.  The applicant was not on active duty at the time the Temporary Early Retirement Authority message was announced and his 76Y MOS was not shown on the list of MOSs approved for early retirement in accordance with the Temporary Early Retirement Authority. 

3.  Based on the foregoing evidence, the applicant was not eligible for early retirement under the Temporary Early Retirement Authority.  Therefore, his records which show separation under the Voluntary Early Transition are correct as currently constituted.  

4.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




      _______ _  XXX _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090000013



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000013



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1