IN THE CASE OF:	

		BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090006745 


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, in effect, correction of his records to show that his discharge of 24 April 1992 was voided and that he continued to serve on active duty until he qualified for a full retirement by reason of length of service with entitlement to all back pay and allowances.

2.  The applicant states, in effect, that he was serving as a finance specialist in Germany, and in 1991 he was notified that he was slated for removal from the service due to Base Realignment and Closures (BRAC) and he was given the choice of volunteering to get out and take the severance pay or wait until the end of the Fiscal Year and if not promoted, get nothing.  He goes on to state that he opted for the early out with severance pay and on his last day in country, he was notified that he had met the cut-off score for promotion to the rank/grade of sergeant (SGT)/E-5 and he was told that he should notify personnel at Fort Dix, NJ when he arrived so that he could be promoted and reenlist.  However, when he arrived at Fort Dix he was told that nothing could be done at that point.  He continues by stating that he applied to the Board in 1994 and he was told at that time that there was no evidence in his records to show that he was in a promotable status at the time of his separation.  However, after 14 years had elapsed, he has finally obtained copies of his promotion point worksheet.  Accordingly, he desires the injustice of not being able to complete his military career because someone did not do their job be corrected and that he be compensated for his loss in the form of a full military retirement and back pay and allowances.


3.  The applicant provides a copy of his original application to the Board and the response he received at the time in 1996, and copies of his DA Forms 3355 (Promotion Point Worksheet) for his initial board on 11 January 1988 and his reevaluation on 6 November 1989, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.

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 enlisted in the Regular Army (RA) on 6 September 1983 for a period of 4 years and training as a finance specialist.  He completed his basic combat training at Fort Jackson, SC and his advanced individual training (AIT) at Fort Benjamin Harrison, IN.  He was transferred to Germany on 2 February 1984.  He was advanced to the rank/grade of specialist (SPC)/E-4 on 2 April 1985.

3.  On 9 March 1987, he reenlisted for a period of 3 years and assignment to Walter Reed Army Medical Center (WRAMC).  He departed Germany on 25 March 1987 and he was transferred to WRAMC.  He appeared before the SGT/E-5 promotion selection board on 11 January 1988 and he received a total of 639 points.  He reenlisted on 5 August 1988 for a period of 4 years and he remained at WRAMC until 23 January 1989, when he was again transferred to Germany.

4.  The applicant received a reevaluation of his promotion points on 6 November 1989 and he was granted 791 points.  He received a recomputation of his points on 2 February 1990 and he received 771 points.  He received a recomputation of his points on 24 June 1991 and he received 646 points.  On 17 January 1992, his points were reevaluated and he received 700 points.  However, those points were not effective until 1 April 1992 as all adjustments to promotion points had to be made and posted at least 3 months before they were effective.  The month of adjustment counted for 1 month, regardless what day it was made.

5.  Meanwhile, on 21 October 1991, the applicant received orders transferring him to Fort Sill, OK with a reporting date of 10 April 1992.  The applicant extended his enlistment on 25 October 1991 for a period of 8 months for the purpose of meeting the service remaining requirement for a permanent change of station move to the United States.  His expiration of term of service (ETS) was adjusted to 4 April 1993.

6.  On 14 January 1992, the applicant voluntarily submitted a request for separation under the Fiscal Year (FY) 1992 Enlisted Voluntary Early Transition Program, effective 25 April 1992, under the Special Separation Benefit (SSB) option.  He also requested transition leave in conjunction with his separation and 10 days of permissive temporary duty (TDY) for the purpose of house hunting.

7.  His request was approved on 29 January 1992 and orders were published on 7 February 1992 transferring him to the Transition Point at Fort Dix with a reporting date of 19 February 1992.

8.  On 20 February 1992, he entered into a contract to enlist in the U.S. Army Reserve (USAR), effective 25 April 1992, for a period of 4 years.

9.  On 24 April 1992, he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 16-8 and the Voluntary Early Transition Program.  He had served 8 years, 7 months and 19 days of total active service.

10.  On 23 December 1996, he was honorably discharged from the USAR in the grade of E-4.

11.  In the processing of this case a staff member of the Board contacted officials at the U.S. Army Human Resources Command – Alexandria (USAHRC-Alexandria), VA in an attempt to ascertain what the promotion point cut-off score was for military occupational specialty (MOS) 73C for pay grade E-5 on 1 March 1992.  Officials at the USAHRC-Alexandria informed the staff member of the Board that the data requested (1 March 1992 cutoff scores) was no longer available.

12.  A review of the applicant’s official records failed to reveal any indication that the applicant made the promotion cutoff score for 1 March 1992.  His promotion points at that time were 646 points.  There is also no evidence to show that he attempted to withdraw his request for early separation.

13.  All Army Activities (ALARACT) message, date time group (DTG) 252047Z July 1991, announced the implementation of separation pay for Regular Army 

enlisted Soldiers.  It provided, in pertinent part, that non-disability separation pay 
was authorized for Regular Army enlisted Soldiers involuntarily separated or released from active duty who were discharged under honorable conditions and who had completed at least 6 years, but fewer than 20 years of active service.

14.  Personnel Command (PERSCOM) message, DTG 011200Z October 1991, announced the FY1992 Enlisted Voluntary Early Transition Program.  It provided that eligible Soldiers could submit their request for separation between 7 October 1991 and 30 March 1992 and they must be separated no later than 30 August 1992.

15.  Department of the Army message, DTG 202100Z December 1991, announced the Voluntary Separation Incentive Program (VSIP) to support the Army drawdown.  The message defined four categories of RA Soldiers who could request separation under the VSIP.  The categories were as follows; Category 1- E-4 (P) and below, in any MOS with more than 7 years of service as of
31 December 1991; Category 2 - E-5 (P) in any MOS with 12 years or more of service as of 31 December 1991; Category 3 - E-5 (P) or above with 9 years or more service in selected MOS fields as of 31 December 1991; and Category 4 - Any Soldier with 6 years or more of service who is fully qualified for retention but denied reenlistment under the retention management provisions of Army Regulation 601-280 (Total Army Retention Program).

16.  In the interim, the Secretary of Defense was in the process of drafting guidance for the administration and payment of separation incentive pay for both officer and enlisted personnel in over strength inventories to encourage them to leave active duty voluntarily.  On 20 December 1991 the Department announced the provisions of the National Defense Authorization Act (NDAA) for FY1992, which established the VSIP and two separation incentive options.  Both separation incentive options, the VSI and the Special Separation Benefits (SSB), were offered jointly.  Service members who were approved for the VSIP had the option of receiving either the VSI or the SSB.

17.  Those that chose the SSB received a lump sum payment equal to 15 percent of his/her annual basic pay multiplied by 12 and multiplied again by his/her number of years of active military service.  In return, they had to agree to serve in the Ready Reserve for a period of not less than 3 years after completion of any statutory obligation.

18.  Those choosing the VSI were to receive an annual payment equal to 2.5 percent of his/her annual basic pay multiplied by 12 and multiplied again by the 
number of years of active Federal service.  The member had to agree to serve in 
the Ready Reserve for the entire period that he/she received annual payments.
19.  ALARACT Message, DTG 031600Z January 1992, announced changes to the Retention Control Points (RCP) for enlisted personnel.  It provided, in pertinent part, that as part of the Army Drawdown, the RCP for personnel serving as promotable E-4s and below would be lowered from 12 years to 8 years, effective 1 October 1992.  It further provided that promotable E-4s and below who were beyond their RCP on 1 October 1992 were ineligible to reenlist or extend their enlistment and must separate not later than 30 September 1992, regardless of their current contracted ETS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he met the cut-off score for 1 March 1992 and he should have been promoted to SGT/E-5 instead of being discharged has been noted and appears to lack merit.

2.  While it is noted that he has now provided copies of his promotion point worksheet, he has not provided evidence to show that he met the announced Department of the Army cutoff score for his MOS on 1 March 1992 and the staff of the Board has been unable to confirm his contention with officials at USAHRC-Alexandria.

3.  It is further noted that the applicant was on transition leave for almost 2 months before his discharge was finalized and that there was sufficient time for him to follow up on the issue before his discharge.  However, the applicant waited for over 2 years before he surfaced the issue and there was no evidence available at the time to substantiate his contention at that time that he was on the promotion standing list. 

4.  The applicant contends that his Army career was unjustly ended by the Army by not voiding his discharge and promoting him SGT/E-5 at the time.  However, the applicant has not submitted any evidence and his records do not contain any evidence to show that he attempted to have his discharge voided and to be promoted.

5.  Additionally, the applicant was not precluded from continuing his career in the Reserve Components; however, there is no evidence to show that he attempted to do so after his obligation was completed.  Accordingly, he is not entitled to compensation for service he did not perform.

6.  Therefore, in the absence of evidence to show that he met the cutoff score for promotion in his MOS on 1 March 1992 and that he requested to be promoted and to have his discharge request voided, it must be presumed that he was properly discharged in accordance with the applicable laws and regulations in effect at the time with no violations of any of his rights.

7.  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.

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.



      __________X____________
               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)                                         AR20090006745



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ABCMR Record of Proceedings (cont)                                         AR20090006745



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