IN THE CASE OF: 

		BOARD DATE:	    17 April 2014

		DOCKET NUMBER:  AR20130013610 


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 that his records be corrected to show he was retired under the Temporary Early Retirement Authority (TERA) instead of the Special Separation Benefit (SSB).

2.  The applicant states he requested retirement under TERA and he was misinformed by his command that he did not meet the requirements for TERA because he was in no danger of being involuntary separated but that he was eligible for separation under the Voluntary Separation Incentive (VSI) and SSB programs.  He chose the SSB; however, in 2007 he was assigned a 60% disability rating by the Department of Veterans Affairs (VA) and the VA withheld payment pending recoupment of his SSB pay which he believes to be unfair because it left him unrewarded for all his years of service.  He also states that he found a case similar to his that was acted on by the Air Force Board for Correction of Military Records (AFBCMR).

3.  The applicant provides a four-page letter, a one-page letter, a 13-page letter explaining his application, a three-page letter from his sister, a copy of AFBCMR case #98-03394, separation orders, VA Rating Decision, Record of Proceedings (AR20100012005), DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 2656 (Data for Retired Pay), four letters from the VA, and a letter from the U.S. Army Human Resources Command. 




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 enlisted in the Regular Army on 13 July 1977.  He successfully completed his training and continued to serve on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-7 on 1 June 1990.

3.  On 30 August 1995, while serving as a track vehicle repairer, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 16-8 and the Voluntary Early Separation Program – SSB.  He had served 18 years, 1 month, and 18 days of active service and he was paid $70,951.18.

4.  The documents provided by the applicant show that he received a 60% service connected disability rating from the VA on 27 September 2007, and on   19 December 2012 he was granted an 80% service connected disability rating from the VA.

5.  A review of his official records failed to show evidence to indicate that the applicant had any unfitting conditions at the time of his discharge.  Additionally, there is no evidence in the available records to show that he applied for retirement under TERA.

6.  In 2010, the applicant applied to the Board requesting that he be granted a medical retirement and that administrative corrections be made to his DD Form 214.  On 25 January 2011, the Board granted his request to make administrative  corrections to his DD Form 214 and denied his request for medical retirement.

7.  In 2011, the applicant applied to the Board requesting that his discharged be changed to a retirement by reason of physical disability.  On 29 November 2011, the Board denied his request in ABCMR Record of Proceedings AR20110004802.

8.  Total Army Personnel Command (TAPC) message 121432Z (FY95 Enlisted Early Retirement Program) provided the criteria for the TERA and provided a list overage specialties eligible for that program.  It shows that the applicant’s military occupational specialty (MOS) and grade (63H/E7) were listed as overage specialties authorized for TERA in fiscal year (FY) 1995.  The message also provided that applications must be received at the TAPC no later than 31 August 1994.  It also provided that due to the limited number of overages in each specialty identified, applications would be approved until the number required was reached.

9.  In 1993, Congress provided TERA as another drawdown tool in addition to the VSI/SSB which was authorized by Congress in 1992.  This measure allowed the Army to offer early retirement to certain Soldiers who have at least 15 years but less than 20 years of service.  Early retirement is not an entitlement and the Army offered it only to selected Soldiers in excess grades and skills.  The intent of the Army was to continue using TERA through FY 1999, but was extended to December 2001 primarily for officers in excess skill area not selected for promotion and for sergeants with over 18 years of service who had been barred from reenlistment or who declined continued service.  The authority for TERA is codified in Title 10, U.S. Code, section 1293.

10.  The VSI program was designed to support the Army’s drawdown.  Headquarters, Department of the Army (DA) Message 281802Z, dated in January 1992, clarified issues associated with the VSI program.  

11.  Title 10, U.S. Code, section 1174(h) (2) requires the VA to withhold compensation benefits received for the period in which SSB was paid until an amount equal to the SSB payments is recouped.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have received a 15-year retirement under the TERA program has been noted and found to lack merit.  TERA was available only to Soldiers serving in an excess specialty and the applicant's MOS was one of the specialties designated at the time the message was released; however, there is no evidence to show that he applied for TERA or that he was misinformed of the eligibility requirements of that program. 

2.  The applicant's contention that he was incorrectly advised that he was not eligible for TERA has also been noted; however, he has not provided and his records do not contain evidence showing that he attempted to apply for retirement under the TERA within the timeframe designated.  While approval of TERA applications was not guaranteed, applications were required to be received at the TAPC no later than 31 August 1994.  

3.  The applicant’s contention that he should be granted retirement under the TERA program because his SSB pay was recouped by the VA and by doing so he received no compensation for his military service has been noted and found to lack merit. 

4.  While the Board does not have any authority over the VA or the application of laws by that agency, the applicable laws require recoupment of compensation received from the government so as to avoid dual compensation for the same period of service.

5.  It is also noted that the acceptance of compensation from the VA was volitional on his part and he could have retained his SSB pay and declined VA disability pay for his service.

6.  Therefore, since it appears that he did not apply to retire under the TERA and has provided no evidence to show that he was misinformed of his eligibility under that program, there appears to be no basis to grant his request. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.
2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _  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)                                         AR20130013610



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ABCMR Record of Proceedings (cont)                                         AR20130013610



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