IN THE CASE OF:	  

		BOARD DATE:	  25 June 2014

		DOCKET NUMBER:  AR20130017827 


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 he be returned to active duty or that he be allowed to retire under the Temporary Early Retirement Authority (TERA).  

2.  The applicant states:

	a.  He executed a contract for assignment in specialty 56A (Chaplain) but the contract was proven invalid and could not be honored.  

	b.  He is losing out on the opportunity to retire under the TERA which was offered to him at the same time he was awarded the contract.  

	c.  During his separation briefing, he was informed that it was mandatory to attend a meeting with the Reserve Component Career Counselor (RCCC).  He never received a letter from the U.S Army Reserve (USAR) accepting him as an Army nurse.  

	d.  He indicated to the RCCC that he was a registered nurse and that he would take a job anywhere in the country; however, he was informed by the RCCC that he was qualified for a "will train" chaplain position.  

	e.  He did not accept the early retirement due to the fact that he was given a contract from the RCCC for the "will train" chaplain position meaning he was going back on active duty.  He was to attend a two-year accredited school to obtain a Masters of Divinity degree in order to join the Army Chaplain Corps.  
	f.  The only way to accept the contract was to accept separation pay.  He could not report to the USAR unit until after his separation date of 1 March 2013 meaning he was no longer on active duty.  

	g.  After reporting to the USAR unit, he was informed that his contract could not be honored because none of the Chaplain Corps procedures had been met.  He should have never accepted the contract and he should have applied for early retirement under the TERA.  

3.  The applicant provides the documents identified in a table of contents.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the Army National Guard (ARNG), U.S. Air Force Reserve, and in the Regular Army, the applicant was appointed as a second lieutenant in the Regular Army, Army Nurse Corps, on 4 March 2008.  He was promoted to first lieutenant on 4 September 2009.  

2.  In memoranda dated 15 August and 22 October 2012, he was informed by the U.S. Army Human Resources Command (HRC) of his involuntary separation due to twice failing selection for promotion to captain.  The separation date was established as 1 March 2013 by law.  He was also informed that officers who have twice failed selection for promotion and have 15 to 20 years of active service may be eligible to request retirement under the TERA.  He was also encouraged to continue affiliation with the U.S. Army by joining a unit in either the ARNG or the USAR.

3.  A DA Form 5691-R (Request for Reserve Component Assignment Orders), dated 22 October 2012, indicates that upon completion of his active duty service, he had accepted an assignment in the USAR in specialty 56A.  

4.  On 1 March 2013, he was honorably discharged due to non-selection for permanent promotion.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 17 years and 28 days of active duty service.  

5.  His last Officer Evaluation Report shows his performance was rated as "satisfactory."

6.  In the processing of this case, an advisory opinion was obtained from the Department of the Army, Office of the Deputy Chief of Staff, G-1, Officer Division. The advisory opinion states:

	a.  On 24 September 2012, the Secretary of the Army authorized Regular Army officers twice non-selected for promotion or selected for discharge by a centralized selection board to be eligible to request early retirement if they had over 15 years but less than 20 years of active duty on the prescribed discharge date.  The applicant's military records confirm he met the eligibility criteria to request TERA.  While TERA is not an entitlement, the Commanding General, HRC, has normally approved such requests unless there was evidence of substandard performance of duty or moral or professional dereliction in an officer's record. 

	b.  The applicant was erroneously advised by the RCCC that he could be assigned to a Selected Reserve position requiring a Chaplain Corps officer and could train to become a chaplain (will train) upon assignment.  There is no chaplain position designated as "will train" in the Army.  An individual assigned to an Army chaplain position must already have a Master of Divinity degree, have an ecclesiastical endorsement from an appropriate agency or faith group, and have been approved for and commissioned as a Chaplain Corps officer due to selection by a Chief of Chaplains accession selection board.  The applicant did not meet any of these criteria at the time of his separation.  In short, he should have never been offered the assignment. 

	c.  They recommend approval of his request that his Army records be corrected to indicate he requested and was approved for early retirement under the provisions of TERA to be effective 1 March 2013; that his Reserve appointment be voided; and that he not be reinstated in the Regular Army because he is beyond the statutory discharge date for an officer twice non-selected for promotion.

7.  The advisory opinion was forwarded to the applicant for his information and to allow him the opportunity to submit comments or a rebuttal.  No response was received.

8.  In a memorandum dated 19 December 2013, the Department of the Army, Office of the Chief of Chaplains, confirmed the applicant should not have been offered the 56A position due to lacking the accession requirements necessary to even apply to be a chaplain and go before a Chief of Chaplains Accessions Board.  

9.  Title 10, U.S. Code, section 631 provides that each officer of the Army, Air Force, or Marine Corps on the active-duty list who holds the grade of first lieutenant and has failed of selection for promotion to the grade of captain for the second time, whose name is not on a list of officers recommended for promotion to the next higher grade shall - (1) be discharged on the date requested by him and approved by the Secretary of the military department concerned, which date shall be not later than the first day of the seventh calendar month beginning after the month in which the President approves the report of the board which considered him for the second time; (2) if he is eligible for retirement under any provision of law, be retired under that law on the date requested by him and approved by the Secretary concerned, which date shall be not later than the first day of the seventh calendar month beginning after the month in which the President approves the report of the board which considered him for the second time.

10.  All Army Activities (ALARACT) message 284/2012, dated 11 October 2012, announced the implementation of TERA.  The message provides:

	a.  The implementation of TERA allows the Army to offer early retirement to service members who have completed at least 15 years of active service.  TERA offers voluntary early retirement, at a reduced monthly retirement pay, to eligible members prior to completing 20 years of service.

	b.  TERA is a discretionary authority and it is not an entitlement.  Retirement with at least 20 years of service is the basic retirement for those who complete a career in the army.  This is a very limited program the Army elects to use as part of a comprehensive force management strategy to shape the force.

	c.  Army application of this authority, as approved by the Secretary of the Army, is limited to the specific eligibility criteria.  Because TERA is not an entitlement, eligible members who desire early retirement must apply for consideration, and approval is not assured.

	d.  Application of TERA is limited to Soldiers who are denied continued active duty service with an established involuntary separation date of 30 September 2018 including officers/warrant officers who have twice failed selection for promotion to the next grade, including those who have been selected for, but not yet accepted, selective continuation, who are serving on active duty and have 
15 but less than 20 years of active service as of their established involuntary separation date.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was twice non-selected for promotion as a Regular Army officer.  Evidence also shows he had completed over 15 years of active duty service and that his performance was rated as satisfactory.  Therefore, he met the eligibility criteria for early retirement under TERA.

2.  Evidence further shows he was offered a position in the Selected Reserve as a chaplain and that he accepted the position based on his desire to continue affiliation with the U.S. Army.  Based on the acceptance of the position, he was discharged from the Regular Army instead of requesting placement on the Retired List under the provisions of TERA.

3.  The Office of the Chief of Chaplains confirmed the applicant does not meet the requirements of the position offered to him.  Accordingly, his USAR contract for this position should be voided.

4.  It is reasonable to believe that the applicant would have requested, in a timely manner, a retirement under TERA had he not been misinformed and offered a false opportunity to return to active duty as a chaplain.

5.  His military records show he qualified for early retirement under the provisions of TERA.  Therefore, based on this fact, and per his request, his records should be corrected to show his request was approved for early retirement under the provisions of TERA with an effective date of retirement of 1 March 2013.

6.  This correction of records may have an effect on his SBP status/coverage.  He is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSO's by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions he may have.

BOARD VOTE:

___X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  voiding his discharge from the Regular Army dated 1 March 2013;
	b.  voiding his USAR contract for the 56A position;

	c.  showing he applied for, in a timely manner, an early retirement under the provisions of TERA; and that it was approved with an effective date of placement on the Retired List of 1 March 2013; and

	d.  paying him all back retired pay as a result of this correction.



      _______ _   _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)                                         AR20130017827



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ABCMR Record of Proceedings (cont)                                         AR20130017827



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