IN THE CASE OF:	  

		BOARD DATE:	  19 March 2015

		DOCKET NUMBER:  AR20140010493 


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 reconsideration of his earlier request for correction of his records to show he was retired under the Temporary Early Retirement Authority (TERA) instead of discharged under the Early Release Program – Special Separation Benefit (SSB).

2.  The applicant states:

* his chapter 7 bankruptcy discharge and divorce petition shows his state of mind at the time and he was blindsided by everything
* his doctor's statement shows his medical condition at the time
* he is a very sick man and his condition started while he was a Soldier
* it was life or death and not of his own volition that the decision was made
* he was not aware of the impact on his Department of Veterans Affairs (VA) disability or his military SSB and he was fighting for his life
* he met the service requirements for TERA then and now
* he applied for TERA and he was denied so the SSB was the best of choices remaining for him at the time
* he stood by his decision until his benefit was recouped with no regard for the concurrent receipt law that allows retirees to keep both retired pay and VA compensation which now covers those with 15, 20, and 30-plus years of service
* his chain of command knew of his request and desire to retire early under TERA
* he should be granted early retirement in the interest of fairness since the SSB has been recouped and early retirement was a possibility at the time but his request and desire was denied
* he has been rated 100-percent disabled by the VA and as permanently and totally unemployable
* he most likely would have died and still might because of his brain condition that has been determined to be service-connected
* he questions how a totally and permanently disabled Soldier with 21.9 years of honorable service have his opportunity for retirement taken without doing the same to every retired service member with 15-plus years and with VA compensable disabilities
* he chose the Army as a career and performed his duties to the highest of standards
* the Board's previous decision did not just diminish his sacrifices, but treated them as if they never existed and the Board has the authority and obligation to treat him fairly
* he'll never know if his request would have been denied at the U.S. Total Army Personnel Command (PERSCOM) because he never got the chance due to bad information
* he loved his wife and he was devastated when he was served divorce papers, even though he knew they were coming prior to being served
* he is being denied Concurrent Retirement and Disability Program (CRDP) and Combat-Related Special Compensation (CRSC) benefits, retirement, and SSB by not being placed in a retired status and he questions if this is fair or just

3.  The applicant provides:

* self-authored statement
* memorandum for record, dated 3 May 2014
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings Docket Number AR20130013610, dated 24 April 2014
* Western District of Texas Case Number 93-60598 LEK extract, dated 15 October 1993
* divorce petition
* Army/Air Force Leave and Earnings Statement (Active and Reserve Forces) for the period 1 through 28 February 1993
* letter from Dr. G____ L____ W____, a neurological surgeon, dated 29 April 2008
* medical record extracts
* U.S. Army Reserve Personnel Center (ARPC) Orders C-09-555660, dated 26 September 1995
* Headquarters, 75th Division (Exercise), Orders 200-05, dated 18 July 1996
* DA Form 2166-7 (Noncommissioned Officer Evaluation Report) for the period December 1993 through November 1994
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* White House inquiry and related correspondence
* letter from the VA, dated 22 April 2013
* two Certificates of Training
* self-authored letter, dated 8 May 2014
* Transition Orders, dated 8 June 1995
* Headquarters, III Corps and Fort Hood, Orders 115-0253, dated 25 April 1995
* Concurrent Department of Defense (DOD) and VA Pay extract
* two ABCMR letters, dated 26 January 2011 and 1 December 2011
* DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 24 June 2013

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130013610 on 17 April 2014.

2.  The applicant provides a memorandum for record from his former detachment leader, new arguments, and additional evidence that warrant reconsideration by the Board.

3.  The applicant enlisted in the Regular Army on 13 July 1977.

4.  On 30 August 1995 while serving in the rank/grade of sergeant first class (SFC)/E-7 in military occupational specialty (MOS) 63H (Track Vehicle Repairer), the applicant was honorably discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel – Personnel Separations), paragraph 16-8, and the Voluntary Early Separation Program – SSB.  His DD Form 214 shows he completed 18 years, 1 month, and 18 days of active service and he was authorized payment of an SSB in the amount of $70,951.18.

5.  The applicant provided a memorandum for record, dated 3 May 2014, in which his former detachment leader stated he worked with him prior to his separation and he had at least two separate conversations with him regarding his separation decision during that time.  The applicant indicated his desire to retire early by submitting a DA Form 4187 (Personnel Action) and he had at least one meeting with the immediate command staff regarding his preference to retire early; however, the applicant was informed he was not eligible under TERA.

6.  The applicant also provided:

	a.  court documents showing his release from dischargeable debts and his divorce petition;

	b.  a leave and earnings statement for February 1993 showing his debts;

	c.  a letter from his neurological surgeon, dated 29 April 2008, showing his medical condition in 2006 and 2007;

	d.  orders showing his status and assignment;

	e.  a DA Form 2166-7 for the period December 1993 through November 1994 showing he received a "Successful" and "Superior" rating; and

	f.  a self-authored White House inquiry and correspondence stating his early retirement request under TERA in 1993 was denied and he was told he was ineligible.

7.  His available records are void of and he failed to provide any evidence showing he had any unfitting conditions at the time of his discharge.  Additionally, his records are void of any evidence showing he applied for early retirement under TERA.

8.  On 25 January 2011 and 29 November 2011, the Board denied the applicant's requests for a medical retirement.

9.  Title 10, U.S. Code, section 1176, states a Regular enlisted member who is selected to be involuntarily separated, or whose term of enlistment expires and who is denied reenlistment, and whom on the date on which the member is to be discharged is within 2 years of qualifying for retirement under section 3914 or 8914 of this title, shall be retained on active duty until the member is qualified for retirement, unless the member is sooner retired or discharged under any other provision of law.

10.  The Voluntary Separation Incentive (VSI) and SSB programs were established by the National Defense Authorization Act in 1992 to assist with the Army's drawdown.  The VSI and SSB were programs used to encourage Soldiers to voluntarily leave military service.  Soldiers who qualified for these programs received benefits based on their salary and years of service at the time of separation.

11.  Section 4403 of the National Defense Authorization Act for Fiscal Year 1993 provided the Secretary of Defense a temporary additional force management tool with which to effect the drawdown of military forces through 1999.  During the initial active force drawdown period (23 October 1992 and ending on 1 October 1999), the Secretary of the Army could authorize an enlisted member with at least 15 but less than 20 years of creditable service a length of service retirement.

12.  Military Personnel (MILPER) 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 it was offered to select enlisted and officer personnel who met strict eligibility criteria outlined in this message and/or supplemental updates.  TERA was used to retire members whose skills were excess to the Army's short-term and long-term needs.  Enlisted Soldiers must have – without exception – held a primary MOS and grade listed in this message.

13.  On 12 May 1994, PERSCOM released a message implementing the Fiscal Year 1995 Regular Army Enlisted Early Retirement Program.  This message listed eligible MOSs and provided for PERSCOM to determine which applications would be approved based upon force structure and the best interest of the Army.  Retirements for the selected categories would only be approved for dates between 31 December 1994 and 31 August 1995.

14.  The May 1994 PERSCOM message implementing the Fiscal Year 1995 Regular Army Enlisted Early Retirement Program listed MOS 63H at the SFC rank and with a minimum of 15 years of creditable active duty service as of 31 August 1995 as eligible for early retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for reconsideration and the new evidence and arguments presented were carefully considered.  However, there remains an insufficient evidentiary basis to support granting the requested relief.

2.  The applicant provided a memorandum for record from his former detachment leader confirming his contentions.  However, the memorandum for record failed to provide the time frame of the applicant's submission for retirement under TERA and is based on a recollection of an event over 20 years ago.

3.  The correspondence with the White House provided by the applicant shows his request for early retirement under TERA was denied in 1993 due to his ineligibility.

4.  Although the applicant may have applied for retirement under TERA in 1993, MILPER Message Number 93-164 did not identify his MOS as eligible under TERA.  His MOS was not listed as an eligible MOS until 1994.  There is no evidence he reapplied for retirement when his MOS became eligible under TERA in 1994.

5.  His records are void of any evidence he ever applied for or he was denied retirement under TERA.  His DD Form 214 shows the narrative reason for his discharge as "Early Release Program – Special Separation Benefit" and he was authorized payment of an SSB in the amount of $70,951.00.  Therefore, it is reasonable to presume he volunteered for the early release with entitlement to the SSB instead of applying for retirement under TERA.

6.  In view of the foregoing evidence, there is no basis for granting the applicant's request.

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 AR20130013610, dated 17 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)                                         AR20140010493



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ABCMR Record of Proceedings (cont)                                         AR20140010493



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