RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 March 2006
      DOCKET NUMBER:  AR20050011796


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Ms. Carol A. Kornhoff             |     |Member               |
|     |Mr. Rowland C. Heflin             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to show he was
separated by reason of early retirement.

2.  The applicant states he submitted for early retirement because he was
having problems with his knee, which he injured during his deployment to
Somalia.  His request was disapproved because he did not have enough time
in the military (even though the Army sent him a document informing him he
was eligible).  He was told the early retirement program would be offered
the next fiscal year; however, he was sent Qualitative Management Program
(QMP) papers in late September 1995.

3.  The applicant states he went everywhere the military assigned him.
Those assignments put him and his family through some hardships, but they
were looking at the light at the end of the tunnel.  He would be retired
one day.  There have been several cases since his discharge where senior
enlisted and officer personnel have brought discredit to the Armed Forces,
but they were able to retire.  He harmed no one nor did he lead anyone down
wrong paths.

4.  The applicant provides letters, dated 1 October, 2 October, 9 October
(two), 27 October, and 9 November 1995, supporting his QMP appeal; his QMP
appeal; two noncommissioned officer evaluation reports (NCOERs), for the
periods ending December 1991 and May 1994; and a "Trans-O-Gram" dated
2 November 1994.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 July 1996.  The application submitted in this case is dated
11 October 2004 but was received in this office on 10 August 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 30 October 1980.  He
completed basic training and advanced individual training and was awarded
military occupational specialty (MOS) 73C (Finance Specialist).

4.  The applicant deployed to Somalia from 9 January 1994 through 12 March
1994.  He was promoted to staff sergeant, E-6 on 1 April 1994.  He deployed
to Haiti on 23 September 1994.

5.  By "Trans-O-Gram" dated 2 November 1994 addressed to the applicant's
Fort Drum, NY unit, the U. S. Total Army Personnel Command (PERSCOM)
informed the applicant "Budget constraints for FY95 and FY96 required the
Army to further reduce its enlisted strength.  Our records indicate that
your MOS and grade are included in this program, thereby making you
eligible to apply.  If you are interested in either early retirement or
early release, your request must be received at PERSCOM by 31 Dec 04…."

6.  The applicant returned from Haiti on 18 November 1994.

7.  By letter dated 8 September 1995, the applicant was notified the
calendar year 1995 Sergeant First Class/Advanced Noncommissioned Officer
Promotion/Selection Board determined he was to be barred from reenlistment
under the QMP.  Three NCOERs, for the periods ending September 1989,
December 1991, and May 1994, were identified as the bases for his bar to
reenlistment.

8.  The applicant appealed the bar to reenlistment.  All letters of support
noted his weight problems did not affect the performance of his duties.
His battalion commander noted the applicant's barrel-chested nature
combined with his height (5 foot, 6 inches) made it a great challenge for
him to maintain weight standards. His battalion commander also noted that
the applicant was a weightlifter and his lifting ability proved very
valuable during deployments and field training exercises.

9.  The Commanding General, 10th Mountain Division recommended disapproval
of the applicant's appeal, and on 31 July 1996 the applicant was honorably
discharged after completing 15 years, 9 months, and 1 day of creditable
active service.

10.  Army Regulation 601-280 (Total Army Retention Program) at the time set
forth policy and prescribed procedures for denying reenlistment under the
QMP.  This program is based on the premise that reenlistment is a privilege
for those
whose performance, conduct, attitude, and potential for advancement meet
Army standards.  It is designed to (1) enhance the quality of the career
enlisted force, (2) selectively retain the best qualified Soldiers to 30
years of active duty, (3) deny reenlistment to nonprogressive and
nonproductive Soldiers, and (4) encourage Soldiers to maintain their
eligibility for further service.  The QMP consists of two major
subprograms, the qualitative retention subprogram and the qualitative
screening subprogram.  Under the qualitative screening subprogram, records
for grades E-5 through E-9 are regularly screened by the DA promotion
selection boards.  The appropriate selection boards evaluate past
performances and estimate the potential of each Soldier to determine if
continued service is warranted.  Soldiers whose continued service is not
warranted receive a QMP bar to reenlistment.

11.  Section 4403 of the National Defense Authorization Act (NDAA) for
Fiscal Year 1993 (FY93) 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.  The May 1994 message implementing the FY95 Regular Army Enlisted Early
Retirement Program noted that early retirement was not an entitlement and
would be offered to Soldiers who met the strict eligibility requirements
outlined in this message or in supplemental updates.  Individuals approved
for early retirement under the provisions of the FY95 early retirement
program must have departed active duty no later than 31 August 1995 but not
earlier than the date they attained 15 years active Federal service.  Four
categories of personnel were eligible:

      (A) Soldiers with a bar to reenlistment or who signed a declination
of continued service statement who completed over 18 years of active
Federal service;

      (B) Promotable sergeants, regardless of MOS, who reached their
retention control point in FY95;

      (C) Soldiers who held a primary MOS and grade as listed in the
message (staff sergeants holding primary MOS 73C were in this category) and
for whom retirements would be approved only for dates between 31 December
1994 and 31 August 1995; and

      (D) Promotable sergeants, regardless of MOS, with a basic active
service date before 30 September 1978.

13.  The August 1995 message implementing the FY96 Regular Army Enlisted
Early Retirement Program did not list eligible MOSs; PERSCOM determined
which applications would be approved based upon force structure and the
best interest of the Army.  The message noted that early retirement was not
an entitlement and would be offered to Soldiers who met the strict
eligibility requirements outlined in this message or in supplemental
updates.  Three categories of personnel were eligible:

      (A) Soldiers with a bar to reenlistment or who signed a declination
of continued service statement who completed over 18 years of active
Federal service;

      (B) promotable sergeants who were allowed to reenlist for more than
   15 years, 29 days prior to 1 October 1993;

      (C) there was no category C in the FY96 program; and

      (D) Promotable sergeants, regardless of MOS, with a basic active
service date before 30 September 1978.

DISCUSSION AND CONCLUSIONS:

1.  The 2 November 1994 "Trans-O-Gram" PERSCOM sent to the applicant has
been noted.  It appears this "Trans-O-Gram" was sent to all Soldiers with
the MOSs and grades outlined in the FY95 early retirement implementing
message without regard to a Soldier's time-in-service.  Unfortunately, the
applicant did not meet the eligibility requirements outlined by the message
implementing the FY95 early retirement program.

2.  The implementing message was sent out in May 1994, during a time the
applicant was not deployed.  In addition, individuals approved for early
retirement under the provisions of the FY95 early retirement program must
have departed active duty no later than 31 August 1995 but not earlier than
the date they attained 15 years active Federal service.  The applicant did
not attain 15 years of active Federal service until 30 October 1995.

3.  The eligibility criteria for the FY96 early retirement program was even
more restricted.  E-6s, unless they were Soldiers with a bar to
reenlistment or who signed a declination of continued service statement who
completed over
18 years of active Federal service, no matter what their MOS was, were not
eligible for early retirement.  As Headquarters, Department of the Army
constantly readjusted the eligibility criteria to ensure the needs of the
Army were met while serving the needs of the drawdown, it appears likely
PERSCOM did not know the applicant would not be eligible for the FY96
program when the FY96 program was finally implemented.

4.  While unfortunate, the applicant did not meet the eligibility criteria
for early retirement under either the FY 95 or the FY 96 early retirement
programs.  As the implementing messages noted, early retirement was not an
entitlement but was offered only to Soldiers who met strict eligibility
requirements.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 July 1996; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         30 July 1999.  The applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __cak___  __rch___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations
prescribed by law.  Therefore, there is insufficient basis to waive the
statute of limitations for timely filing or for correction of the records
of the individual concerned.




                                  __John T. Meixell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011796                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060330                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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