IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100000801 


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 he had over 15 years of creditable active service and was not offered the early retirement program as an option at the time he elected separation under the FY92 Enlisted Voluntary Transition Program.  He was told his primary military occupational specialty (MOS) was overstrength and he would need a waiver to reenlist which would be highly unlikely.  Further, he was told if he did not elect the Special Separation Benefit (SSB), at the end of his enlistment he would be ineligible for anything.

3.  He contends he had a spotless record, was promotable to staff sergeant, and wanted to stay in the Army to finish his career.  He served his country with pride and honor and wants what is rightfully due to him.

4.  The applicant provides 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 complete facts and circumstances of the applicant's discharge are not available for review; however, there are sufficient records available to make a fair and impartial decision in this case.

3.  The applicant was a Regular Army career noncommissioned officer with a total of 15 years, 3 months, and 8 days of net active service this period.

4.  He was honorably discharged under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), paragraph 16-8, by reason of the FY92 Enlisted Voluntary Early Transition Program.

5.  His DD Form 214 shows he was entitled to $41,438.52 in SSB payments.

6.  The FY92 National Defense Authorization Act established two monetary incentive programs to assist in maximizing voluntary separation during the drawdown period of military forces.  One incentive was called the SSB which paid a separation pay equal to 15 percent of the Soldier's years of active service and 12 times the monthly basic pay to which the Soldier is entitled at the time of his/her discharge or release from active duty.

7.  The Temporary Early Retirement Act (TERA) was enacted by Congress on 23 October 1992 in the FY93 National Defense Authorization Act to assist in the military draw down of forces and 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 was granted on an individual basis according to the requirements of the service.  The TERA program ended on 30 September 2001.

8.  Military Personnel 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 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 the provisions of any other voluntary or involuntary separation program were not eligible for early retirement.  It provided that Soldiers whose application for separation under the Voluntary Separation Incentive (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 of 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 – without exception – held a primary MOS and grade listed in this message.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his discharge under the SSB program converted to retirement under the TERA was carefully considered; however, there is insufficient evidence to grant relief.

2.  The evidence of record shows he was discharged on 8 September 1992 under the provisions the FY92 Voluntary Early Transition Program prior to implementation of the TERA.  He was not on active duty at the time the TERA message was announced and his 76V MOS was not shown on the list of MOS's approved for early retirement.  Therefore, he was not eligible for early retirement under the TERA.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  Based on the foregoing evidence, his request should be denied.



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)                                         AR20100000801



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR201