IN THE CASE OF:	  

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120007772 


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 her records to show she was retired under the Temporary Early Retirement Act (TERA).

2.  The applicant states:

   a.  She was recently informed this action is authorized under TERA since she served 17 years in the Army and was released because of downsizing.  Primarily, her records should be corrected because she was never informed of TERA.

	b.  She enlisted in the U.S. Army in January 1976 and retired in February 1993.  This gave her 17 years and 1 month of service.  The highest rank she earned was staff sergeant, pay grade E-6.  She was working in military occupational specialty (MOS) 71L (Administrative Specialist), as a platoon sergeant.  She was demoted to pay grade E-5 in February 1993 specifically for rolling her eyes at a fellow platoon sergeant serving in the rank of sergeant first class (SFC), pay grade of E-7.  She was no longer able to complete 20 years of service.  

	c.  She experienced military sexual trauma (MST) prior to discharge.  She has now been diagnosed by the Department of Veterans Affairs (VA) as having MST with post-traumatic stress disorder (PTSD).

	d.  In accordance with TERA a law has been passed that grants all branches of service temporary authority to approve retirements for members with more than 15 years but less than 20 years of service.  In effect, she requests that her Army record be corrected to reflect that she was retired rather than discharged.

3.  The applicant provides copies of:

* three DD Forms 214 (Certificate of Release or Discharge from Active Duty) ending on 19 February 1993
* Military Personnel Message Number 12-329, Title, TERA, issued on       16 October 2012
* Department of Defense (DoD) Financial Management Regulation Volume 12, chapter 18, dated 18 September 1996
* an article titled, "Showing Thanks to Military Retirees"

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 available evidence shows, on 31 December 1975, the applicant enlisted in the Army Delayed Entry Program.  She enlisted in the Regular Army (RA), in pay grade E-1, on 22 January 1976, for 3 years.  She completed the required training and was awarded MOS 94B (Cook).  

3.  She was promoted to pay grade E-6 on 1 April 1983.  

4.  On 29 April 1986, the applicant's company commander recommended the applicant be issued a Letter of Reprimand (LOR) for missing formation on 15 and 22 April 1986.  The company commander stated the applicant had established a trend of missing or being late for formations and class during her assignment there.  The applicant was given a company grade Article 15 in March 1986 because of that.

5.  She was issued an LOR on 21 April 1986 for missing formation and she was advised of her rights.
6.  On 8 May 1986, the Commanding General, U.S. Army Intelligence Center and School, Fort Huachuca, Arizona, after considering the applicant's response and the recommendation of the chain of command, directed the filing of the LOR in the applicant's official military personnel file (now known as the Army Military Human Resource Record).

7.  On 21 May 1986, she began serving in MOS 97B (Counter Intelligence Special Agent).  

8.  In March 1990, she was advised of the intent to revoke her security clearance and access to Sensitive Compartmented Information (SCI).  The action was based upon her command's request that she be medically evaluated due to a multitude of difficulties, including marital problems, relational problems in her unit, judgment errors, and unethical behavior.  She was diagnosed with an adjustment disorder with depressed mood, resolving, and hysteric and passive aggressive traits.  

9.  On 1 July 1990, she began serving in MOS 71L and on 25 July 1990, her security clearance and access to SCI were revoked.

10.  She reenlisted in the RA in pay grade E-6 on 30 July 1990 for 5 years.

11.  She was reduced to pay grade E-5 on 8 February 1993.  Her records do not contain a bar to reenlistment packet.

12.  The complete facts and circumstances surrounding her discharge action are not available for review with this case.  However, her record contains and she submitted a DD Form 214 which shows she was honorably discharged from active duty on 19 February 1993 under the provisions of paragraph 16-8 of Army Regulation "200-635" (i.e., 635-200), by reason of the "Qualitative Retention Program (QRP)."  

13.  Her DD Form 214 also shows she was credited with completing a total of 17 years and 28 days of active Federal service.  Her DD Form 214 also shows she was credited with 21 days of inactive service.

14.  Although she provides a copy of the MILPER Message Number 12-329 issued on 16 October 2012, she was discharged from active duty in 1993 and was not retired under the Fiscal Year 1993 Early Retirement Program.

15.  On 29 April 2008, the Defense Finance and Accounting Service verified that the applicant received readjustment pay in the amount of $32,090.70 on 
11 March 2003, but no Special Separation Benefit (SSB) or Voluntary Separation Incentive (VSI) pay was shown on her pay account.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated:

   a.  Paragraph 16-5b of the regulation specified that Soldiers denied reenlistment could be voluntarily separated before the expiration of their term of service.  Soldiers who perceive that they would be unable to overcome a locally imposed bar to reenlistment could request immediate separation.  The service of Soldiers separated under this paragraph would be characterized as honorable.  

	b.  Paragraph 16-8 stated a Soldier could be discharged prior to their expiration of term of service when budgetary or authorization limitation required a reduction in the enlisted strength.  Soldiers who were within 2 years of qualifying for retirement on the scheduled separation date would not be processed per this paragraph unless such action was directed by the Secretary of the Army.  The Commander, U.S. Total Army Personnel Command would implement this program by using separation instructions pertaining to a specific class or category of Soldiers.

17.  MILPER Message Number 93-164, dated April 1993, Subject:  Fiscal Year 1993 Early Retirement Program, prescribed the eligibility requirements and application procedures for early retirement for Regular Army enlisted Soldier.  The message stated:

   a.  Early retirement was not an entitlement and would only be offered to Soldiers who met the strict eligibility requirements outlined in the message or in supplemental updates.  Commanders must have ensured that applicants met the eligibility criteria.  The approval authority for all early retirement application was the U.S. Total Army Personnel Command (PERSCOM).
   
   b.  Individuals who had already separated under provisions of any other voluntary or involuntary separation program were not eligible for early retirement.

	c.  Enlisted Soldiers must have been on active duty in the Regular Army and met all eligibility requirements for retirement for length of service for a 20-year retirement as prescribed in Army Regulation 635-200, chapter 12, except where modified by that message.

	d.  Soldiers must have, without exception, held a primary MOS and grade with the minimum number of years of active service as of 31 August 1993 or earlier.  The messages did not list the applicant's MOS of 71L or 97B.
18.  Effective 1 April 2012, the Army implemented the enlisted Qualitative Service Program (QSP) to identify noncommissioned officers (NCO) for involuntary early separation from active duty.  The QSP consists of a series of centralized enlisted selection board processes designed to support the Army Leader Development Strategy and to retain the highest quality NCOs who display the greatest potential for continued service while satisfying mandated force structure requirement.  

19.  MILPER Message Number 12-329, issued on 16 October 2012, stated:

	a.  TERA was applicable to Soldiers with established Headquarters, Department of the Army (HQDA), involuntary separation date from active duty of 30 September 2018 or earlier, who had completed at least 15 years of active service.  Since TERA is not an entitlement, eligible members who desired early retirement must apply for consideration, and approval was not assured.

	b.  NCOs denied continued service as a result of an approved QSP Centralized Selection Board who are serving on active duty and completed 
15 but less than 20 years of active service as of the established involuntary separation date.

	c.  The message does not provide provisions for extending the early retirement benefit to Soldier who were previously separated under the QRP.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant served on active duty from 21 January 1976 to 19 February 1993.  In April 1986 she was issued an LOR for missing formation.  On 25 July 1990, her security clearance was revoked and she was denied access to SCI.  This action was based on her command's request that she be medically evaluated due to a multitude of difficulties, including marital problems, relational problems in her unit, judgment errors, and unethical behavior.  She was reduced to pay grade E-5 on 8 February 1993.  The reason for this reduction is unknown.  

2.  The available record is void of the facts and circumstances which led to her involuntary discharge.  However, her DD Form 214 shows she was discharged under the provisions of Army Regulation 635-200, paragraph 16-8, for QRP, on 19 February 1993.  It appears the applicant was selected for involuntary early separation based on her performance of duty and potential for future contributions.  

3.  She was discharged accordingly on 19 February 1993 with entitlement to separation pay.  Her DD Form 214 shows she completed a total of 17 years 28 days of active Federal service.  

4.  The MILPER message for the FY93 TERA prescribed the eligibility requirements for early retirement.  A review of her record shows she did not meet the eligibility criteria for early retirement under this program.  She did not hold an identified primary MOS at the time and she was separated prior to implementation of the program.  

5.  The Army QSP was announced on 16 October 2012 and it does not apply to the applicant.  This program applies to Soldiers with an established HQDA involuntary separation date from active duty as of 30 September 2018 or earlier; those Soldiers must have completed at least 15 years of active service and most importantly they must have been serving on active duty but denied continued service as a result of an approved QSP.  The applicant was neither serving on active duty at the time this program was announced nor was she separated under the QSP.  The QSP is not retroactive.

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)                                         AR20120007772



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ABCMR Record of Proceedings (cont)                                         AR20120007772



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