BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100020911 


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 completed 15 years and 29 days of total active service.  He also requests that he be allowed to apply for retirement under the Temporary Early Retirement Authority (TERA) with all back pay and allowances to which he is entitled.

2.  The applicant states:

* his records do not show the current number of days he earned while he in the Army
* his records show he had 15 years and 25 days of total active service instead of 15 years and 29 days
* he was repeatedly told by military personnel that leap years were not counted in the computation of his service to determine retirement eligibility
* after further investigation he found out that leap years were to be counted

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 10 December 1996.

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.  On 10 June 1981, the applicant enlisted in the Regular Army (RA).  After completing 2 years, 11 months, and 21 days of net active service this period, he was released from active duty on 30 May 1984 and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

3.  The applicant again enlisted in the RA on 7 November 1984, in the pay grade of E-4.  He was promoted to the pay grade of E-5, effective 14 July 1986.  He remained on active duty through a series of reenlistments and one extension.

4.  On 5 September 1996, Headquarters, III Corps and Fort Hood Orders 249-0204 were published reassigning the applicant to the U.S. Army transition point for discharge processing.  The orders indicate that he was authorized full separation pay in accordance with the provisions of Title 10 U.S.C., section 1174. 

5.  On 10 December 1996, the applicant was discharged in the pay grade of E-5, under the provisions of Army Regulation 635-200, chapter 4, due to completion of required active service.  He enlisted in the USAR Control Group (Reinforcement) effective 11 December 1996.

6.  The DD Form 214 he received shows he completed 12 years, 1 month, and 4 days of net active service this period.  He received a "JBK" separation program designator (SPD) code and full involuntary separation pay in the amount of $30,256.20.

7.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities and reasons for separating Soldiers from active duty, and the SPD (separation program designator) codes to be entered on the DD Form 214.  The SPD code "JBK" on a Soldier's DD Form 214 indicates that the Soldier was involuntarily discharged upon completion of his required active service, and that he was ineligible for, barred from, or otherwise denied reenlistment.

8.  Title 10 U.S.C. section 1174 authorizes separation pay to a regular enlisted Soldier who has six or more but less than 20 years of active service immediately before his discharge and who is discharged involuntarily or as the result of the denial of his reenlistment.  Department of the Army Circular 635-92-1, in 

implementing this statute, states in effect that full separation pay is authorized for Soldiers otherwise fully qualified for retention but involuntarily separated who were denied reenlistment or continuation on active duty under established retention control point (RCP) provisions of Army Regulation 601-280 and separated at the expiration term of service (ETS).

9.  Army Regulation 601-280 (Army Retention Program) outlines uniform procedures for immediate reenlistment or ETS for active Army Soldiers, and states in pertinent part that Soldiers otherwise qualified, may reenlist or extend their current enlistment provided that action does not cause the Soldier to exceed the RCP by more than 29 days.  The RCP for a sergeant E-5 is 15 years.

10.  U.S. Army Personnel Command (PERSCOM) message number 96-180, dated 12 July 1996, announced criteria for the fiscal year 1997 early retirement program.  It states, in part, that promotable sergeants, regardless of military occupational specialty, with a basic active service date on or before 30 September 1978, could submit an application for retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, his records show that he had 2 years, 11 months, and 21 days of net active service at the time of his REFRAD on 30 May 1984.  He completed 12 years, 1 month, and 4 days of net active service at the time of his REFRAD on 10 December 1996.  He completed 15 years and 25 days of total active service and this information is properly shown in his official record.  This total includes any leap years that may have occurred during his service on active duty.  Therefore, his records should not be corrected to show he completed 15 years and 29 days of total active service.

2.  The applicant was not offered early retirement under TERA because he was involuntarily separated due to reaching the RCP for a Soldier in the pay grade of E-5.  In accordance with the applicable law and regulation, he received full involuntary separation pay in the amount of $30,256.20.

3.  Additionally, there is no evidence in the available records showing he was in a promotable status at the time he reached his RCP.  The TERA was used as a temporary drawdown measure.  There was no incentive to offer him early retirement because he had to be separated due to reaching his RCP.

4.  In view of the foregoing, the applicant's 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)                                         AR20100020911



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ABCMR Record of Proceedings (cont)                                         AR20100020911



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