IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100025768 


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, his DD Form 214 (Certificate of Discharge from Active Duty) be amended to show he retired under the Temporary Early Retirement Authority (TERA). 

2.  He states at the time of his discharge in September 1993, he was not informed or offered retirement under the TERA program.  He contends he should have been afforded the opportunity to separate from the military service under this program. 

3.  He provided his DD Form 214 and a TERA document. 

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.  His military personnel record contains a U.S. Army Enlisted Records and Evaluation Center memorandum, dated 5 April 1993, Subject:  Department of the Army (DA) Imposed Bar to Reenlistment Under the Qualitative Management Program (QMP).  This memorandum shows the Calendar Year (CY) 1993 Sergeant First Class/Advanced Noncommissioned Officer Course (ANCOC) Promotion/Selection board, determined he should be barred from reenlistment under the provisions of the QMP, after performing a comprehensive review of his records.  

3.  On 22 April 1993, he acknowledged receipt of his QMP selection and completed an election form in which he chose to submit an appeal.  On 9 June 1993, he requested a change of election option and elected not to submit an appeal and to be separated within 90 days.  

4.  Accordingly, on 9 September 1993, he was honorably discharged under the provisions of paragraph 16-8, Army Regulation 635-200 (Enlisted Personnel), by reason of reduction in authorized strength QMP.  He had completed 16 years and 3 months of net active service.  Item 18 (Remarks) shows he received separation pay in the amount of $17,716.72.  

5.  Title 10, U. S. Code, section 1315, provided the TERA for the active force for the period 23 October 1992 through 31 December 2001.  The Secretary of the Army could authorize a member with at least 15 but less than 20 years of creditable service a length of service retirement.  Individuals who were pending involuntary separation, pending trial by court-martial, or under investigation for UCMJ offenses which the immediate commander believed could result in trial by court-martial or involuntary separation, were ineligible to apply for early retirement.  

6.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 4, set forth policy and prescribed procedures for denying reenlistment under the QMP.  This program was based on the premise that reenlistment was a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  It was designed to enhance quality of the career enlisted force, selectively retain the best qualified Soldiers for up to 30 years of active duty, deny reenlistment to non-progressive and nonproductive Soldiers, and encourage Soldiers to maintain their eligibility for further service. 

7.  The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram.  Under the qualitative screening subprogram, records for grades E-5 through E-9 are regularly screened by the DA promotion selection boards.  The appropriate selection boards evaluate past performances and estimate the potential of each Soldier to determine if continued service is warranted.  Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.  

8.  Army Regulation 635-200 prescribes the Army's enlisted administrative separation policy.  Chapter 16 covers discharges caused by changes in service obligations.  Paragraph 16-8 provides for the early separation of Soldiers due to reduction in force, strength limitations, or budgetary constraints.  It states, in pertinent part, that Soldiers may be separated prior to expiration of enlistment of fulfillment of active duty obligation when authorization limitations, strength restrictions, or budgetary constraints require the Regular Army active duty enlisted force to be reduced in number.

DISCUSSION AND CONCLUSIONS:

1.  He contends he was not properly informed about TERA at the time of his discharge under the QMP.  His contentions are noted; however, there is insufficient evidence to support this claim.

2.  The evidence of record shows he was presented with a DA Imposed Bar to Reenlistment after a review of his records by the CY93 Sergeant First Class Promotion/Selection Board.  He was given an opportunity to submit an appeal on his own behalf; however, he elected separation under the provisions of Army Regulation 635-200, chapter 16-8.

3.  The TERA policy in effect at the time of his separation did not provide for allowing Soldiers who faced involuntary separation under QMP to retire under the TERA provisions.  

4.  The evidence of record confirms he was properly separated, by reason of reduction in force, as a result of the imposition of a DA bar to reenlistment under the QMP with entitlement to separation pay.  Therefore, there is no basis on which to grant 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)                                         AR20100025768





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ABCMR Record of Proceedings (cont)                                         AR20100025768



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