IN THE CASE OF:	  

		BOARD DATE:	  22 October 2009

		DOCKET NUMBER:  AR20090009778 


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 was discharged under the Fiscal Year 1992 (FY92) Enlisted Voluntary Early Transition Program with entitlement to the Voluntary Separation Incentive (VSI)/Special Separation Benefit (SSB).

2.  The applicant states that he applied for the early-out program under the SSB but did not receive the bonus.  He adds that he found out late that his unit did not forward his application even though it had been recommended for approval at the brigade level.

3.  The applicant provides a self-authored statement, dated 19 May 2009; a copy of his DA Form 4187 (Personnel Action), dated 26 February 1992; a copy of his immediate and intermediate commanders' memorandum, dated 26 February 1992; a copy of his Transition Counseling Acknowledgement Checklist, dated 14 February 1992; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 20 July 1992; 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 (RA) for a period of 4 years on 8 December 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 98G3L00RU (Electronic Warfare/Signal Intelligence Voice Interceptor) with a special qualification identifier as a linguist in the Russian language.  He subsequently served through several extensions and/or reenlistments in the RA and attained the rank/grade of staff sergeant/E-6.

3.  The applicant's records also show his last extension in the RA on 6 July 1988 established his expiration of term of service (ETS) date as 12 June 1992.  However, he was held beyond his established ETS date and was honorably discharged on 20 July 1992 by reason of ETS.  The DD Form 214 he was issued shows he completed 13 years, 7 months, and 13 days of creditable active service.  There is no indication on this form that he was discharged under the FY92 Enlisted Voluntary Early Transition Program with entitlement to VSI/SSB.

4.  The applicant submitted the following documentary evidence in support of his request:

	a.  a DA Form 4187, dated 26 February 1992, in which he requested voluntary separation under the provisions of Military Personnel (MILPER) Message 92-85.  He elected to be separated on 10 June 1992 for the SSB.  His immediate commander recommended approval.

	b.  a memorandum, dated 26 February 1992, in which his immediate company commander and deputy brigade commander recommended approval of his request.

	c.  a self-authored statement, dated 19 May 2009, in which he states that his original ETS date was 12 June 1992 and that in February 1992 he submitted his application for early separation.  He was told that he did not need to reenlist as his MOS was listed as an authorized MOS for the purpose of the SSB.  He adds that on 15 May 1992 he discovered that his request was not forwarded to the approval authority.  He immediately applied again and was told he would be automatically extended in the Army pending the approval of his separation request.  His second application also was not forwarded to the approval authority.  He was told the issue would be handled at the Fort Dix Transition Center.  However, he was later informed that he was ineligible for this program and that he had to be separated.  He then submitted his request through his Member of Congress and was told again that he was ineligible for this program.  He adds that his sister recently found a website that shows he has $47,000.00 worth of unclaimed government money.  He would like this Board to judge his case carefully.

5.  MILPER Message 92-85, dated 7 January 1992, announced the implementation instructions for the enlisted voluntary incentive programs in support of the Army's drawdown.  Incentives were offered to separate Soldiers who under existing policies would have been allowed to continue on active duty until eligible for retirement.  The VSI and SSB were offered to selected members. 
Soldiers who met the eligibility criteria were required to enter into a written agreement to separate from active duty and accept an enlistment or transfer to the Ready Reserve.  Applications for separations under the provisions of the VSI/SSB did not guarantee approval.  Only those applications that met the strict requirements established by Headquarters, Department of the Army (HQDA), were approved.  Category 3 requests applied to Soldiers who were in the grade of sergeant/E-5 or above with 9 or more years of active service as of 31 December 1991 in selected MOSs.  The approval authority for this category was the Commander, U.S. Total Army Personnel Command (now known as the U.S. Army Human Resources Command), Alexandria, VA.  The application window for category 3 Soldiers closed on 29 February 1992.  The Commander, USAHRC, determined which applications were approved or disapproved and notified Soldiers of final action through their chain of command starting on or after 15 April 1992.

6.  All Army Activities Message 050500Z August 92 further announced selected MOSs for the FY92 Voluntary Early Transition Program.  It listed sergeants, staff sergeants, and sergeants first class who held MOS 98G with a special qualification identifier as a linguist in the German language as eligible for the early separation.  It also stated that as a general rule, exceptions to the MOSs and grades would not be granted and that any exception submitted for consideration would have to be fully justified, documented, and endorsed by the first colonel in the chain of command.

7.  For SSB, an eligible member of the Armed Forces would receive a lump sum payment equal to 15 percent of the Soldier’s annual basic pay multiplied by his years of active service.  Soldiers who applied for this incentive were required to enter into a written agreement to serve in the Ready Reserve for a period of not less than 3 years in addition to any remaining military service obligation based in statute following the separation from active duty.  The VSI was an annual annuity payment equal to 2.5 percent of the Soldier’s annual basic pay multiplied by his years of service and paid for twice the number of years served.  Soldiers approved for VSI must have been appointed, enlisted, or transferred to the Ready Reserve for the entire period they received VSI annual payments.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was discharged under the FY92 Enlisted Voluntary Early Transition Program with entitlement to SSB.

2.  The evidence of record shows that the applicant submitted an application for voluntary separation under the FY92 Enlisted Voluntary Early Transition Program with entitlement to SSB on 14 February 1992.  His immediate and intermediate commanders recommended approval of his request.  The applicant's record is void of the approval/disapproval memorandum from USAHRC.  However, for the purpose of separating under this program, he held a non-qualifying MOS.  Additionally, since he was held beyond his original ETS date, it appears that his application was forwarded to HQDA as an exception to policy and was disapproved.  Furthermore, since there is no indication that he reenlisted, he was accordingly discharged by reason of ETS.

3.  The applicant's entitlement to funds under a commercial program posted on the internet does not establish his entitlement to separation under the FY92 Voluntary Early Transition Program.  In the absence of evidence to the contrary, it is presumed that his request for separation under the Voluntary Early Transition Program with entitlement to SSB was processed at his request in accordance with law and regulations applicable at the time and was disapproved.

4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, there is insufficient evidence to grant him the requested 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.



      ___________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)                                         AR20090009778



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ABCMR Record of Proceedings (cont)                                         AR20090009778



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