IN THE CASE OF:
BOARD DATE: 19 February 2015
DOCKET NUMBER: AR20140010349
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, reconsideration of her earlier request for correction of her records to show she retired under the Temporary Early Retirement Act (TERA).
2. The applicant states she separated by mutual agreement with her chain of command due to the medical challenges she faced in the last few years of her over 15-year career. She negotiated her separation with her chain of command primarily due her disappointment with her medical treatment at the time. Her separation was not actually the result of her Army Physical Fitness Test (APFT) failures. She requests a review of her records to determine whether she was eligible for early retirement in lieu of her honorable discharge. Her separation from the Army was during a very painful period in her life, yet she did serve long and honorably and is deserving of respect.
3. The applicant provides:
* Army Review Boards Agency letter, dated 2 June 2014
* self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130014287 on 3 April 2014.
2. On 20 April 2013, she submitted an application requesting correction of her records to show she retired by reason of disability or early retirement in lieu of honorable discharge. Her application was incomplete and returned without action by the Army Review Boards Agency Case Management Division on 2 June 2014.
3. She resubmitted an application, dated 29 July 2013, with supporting documentation requesting correction of her records to reflect disability retirement in lieu of honorable discharge without mention of a request for early retirement. This request was considered by the ABCMR in Docket Number AR20130014287 and denied. The applicant submitted a request for reconsideration of this decision in June 2014, wherein she reiterated her request for early retirement which was not considered by the Board in Docket Number AR20130014287. This portion of her original request warrants Board consideration at this time.
4. The applicant enlisted in the Regular Army on 13 July 1983. She was awarded military occupational specialty (MOS) 98G (Voice Interceptor) with the German language specialty. She was promoted to the rank of staff sergeant (SSG) on 1 July 1991. In 1994 she was awarded the Arabic language specialty.
5. U.S. Total Army Personnel Command Order Number 346-31, dated 12 December 1997, conditionally promoted her to the rank/grade of sergeant first class (SFC)/E-7 effective 1 January 1998. This order stated any SSG promoted to SFC who had not completed the Advanced Noncommissioned Officer Course (ANCOC) was promoted conditionally. Orders would be revoked and names removed from the centralized promotion list if those conditionally promoted failed to meet the ANCOC requirement.
6. On 18 September 1998, a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) was initiated against her as the result of her APFT failure. On the same date, she was formally counseled by her first sergeant in a DA Form 4856 (General Counseling Form) regarding initiation of the flag, her enrollment in remedial physical training, and administration of future diagnostic and record APFTs. She was advised that she would be subject to separation under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 13, for unsatisfactory performance should she fail a second record APFT.
7. On 6 November 1998, the U.S. Total Army Personnel Command notified the applicant of her administrative removal from the promotion selection list based on her cancellation of ANCOC due to APFT failure. She subsequently failed two further diagnostic APFTs and another record APFT which was administered on 18 December 1998.
8. On or about 4 January 1999, she was notified by her immediate commander that separation action was being initiated against her under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. The action was initiated due to two consecutive APFT failures, her reduction in rank and inability to overcome the action, and her unlikely potential for leadership and advancement. He recommended her receipt of an honorable discharge.
9. On 4 January 1999, she acknowledged receipt of the notification of the proposed separation action. On 2 February 1999, she consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge for unsatisfactory performance, and the procedures and rights available to her. She voluntarily waived consideration of her case by an administrative separation board contingent upon receiving an honorable discharge.
10. On 12 February 1999, the separation authority approved the applicant's discharge action and directed the issuance of an Honorable Discharge Certificate. On 13 May 1999, she was discharged accordingly and issued a DD Form 214 reflecting her discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 (Separation for Unsatisfactory Performance) prescribes policy and outlines procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.
12. The TERA was enacted by Congress on 23 October 1992 in the Fiscal Year 1993 National Defense Authorization Act to assist in the military drawdown of forces and to permit selected military members to retire early between 15 and 20 years of service and accrue additional military retirement points through service in Reserve Components or employment in qualifying public or community service organizations. The Secretaries of the respective services designated the ranks and military specialties that were eligible to apply according to the needs of the specific service. Retirement under this program was not a right; it was granted on an individual basis according to the requirements of the service. The TERA program ended on 30 September 2001.
13. Military Personnel Message Number 93-164, dated 20 April 1993, prescribed eligibility requirements and application procedures for early retirement for Regular Army Soldiers. It stated that early retirement was not an entitlement and was offered to select enlisted and officer personnel who met strict eligibility criteria outlined in this message and/or supplemental updates. The TERA was used to retire members whose skills were excess to the Army's short-term and long-term needs. Individuals who had already separated under the provisions of any other voluntary or involuntary separation program were not eligible for early retirement. It provided that Soldiers whose application for separation under the Voluntary Separation Incentive (VSI)/Special Separation Bonus (SSB) programs was approved on or after 3 May 1993 could not convert to early retirement unless they were currently serving on active duty in the Regular Army at the time of the announcement of this message, whose separation under the VSI/SSB programs was approved prior to 3 May 1993, who had at least 15 years of active Federal service as of 31 August 1993, and whose MOS as of 31 August 1993 or earlier was listed in this message. Enlisted Soldiers must have without exception held a primary MOS and grade listed in this message.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request to have her honorable discharge changed to retirement under the TERA was carefully considered; however, there is insufficient evidence to grant relief.
2. She was honorably discharged on 13 May 1999 under the provisions of Army Regulation 635-200, chapter 13, for failure to satisfactorily perform her military duties, as evidenced by her failure of two consecutive record APFTs, subsequent removal from the ANCOC list, and revocation of her promotion to SFC.
3. Per Military Personnel Message Number 93-164, MOS 98G was among the MOSs approved for early retirement under TERA for Soldiers in the rank of sergeant or staff sergeant, but only for those holding the German language specialty. The applicant's language specialty at the time of her discharge was Arabic. Additionally, individuals who were involuntary separated were not eligible for early retirement under the TERA.
4. The evidence shows the applicant was properly and equitably discharged in accordance with the regulations and policies in effect at the time. All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and the type and reason for separation were appropriate.
5. Based on the foregoing, there is no basis for granting her 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130014287, dated 3 April 2014.
______________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) AR20140010349
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ABCMR Record of Proceedings (cont) AR20140010349
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