MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        10 November 1998      
	DOCKET NUMBER:   AC98-11419

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

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Ms. Margaret K. Patterson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including advisory opinion, 
	            if any)

APPLICANT REQUESTS:  In effect the applicant requests that he be retired from the Army under the provisions of an early retirement program for soldiers with over 15 years of service.  

APPLICANT STATES:  On 8 December 1993 a Physical Evaluation Board (PEB) at Fort Hood, Texas determined that he was physically unfit and recommended separation from the Army with a 10 percent disability rating.  After three unsuccessful knee operations, several months before this decision, the Army approved a 15 year retirement program for soldiers with his MOS (military occupational specialty).  He feels that he should have been allowed to retire under the provisions of that program.  He states that he served over 15 years in the Army and his job, that of a tanker on the M1 Abrams tank, was included in those specialties for the early retirement program.  He states, in effect, that he was being processed for a medical separation, and the early retirement program had just been announced and they probably did not understand how the program worked.  Soldiers with 20 or more years of service are allowed to retire, regardless of their medical condition.  He served over 15 years; there was a 
15 year retirement program.  He should have been allowed to retire.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Army on 6 July 1978 and remained on continuous active duty until his discharge in 1994.  He was trained as an armor crewman at Fort Knox, Kentucky, and attained the rank of Staff Sergeant E-6 prior to his discharge.  The applicant completed various military courses, including the basic NCO course, the advanced NCO course, drill sergeant school, and M-1 Abrams tank training in MOS 19K.  He served in various locations throughout the world, including Fort Carson, Colorado, Korea, Germany, and Saudi Arabia.  The applicant received numerous awards, including the Bronze Star Medal, the Meritorious Service Medal, the Army Commendation Medal, the Good Conduct Medal (4th award), the Southwest Asia Service Medal with 3 bronze service stars, and the Kuwait Liberation Medal, among others.

On 8 December 1993 a PEB determined that the applicant was unable to perform his MOS duties due to residual knee pain, found him physically unfit for duty and recommended a combined disability rating of 10 percent and that he be separated with severance pay.  On 21 December 1993 the Total Army Personnel Command directed that the applicant be discharged with a disability rating of 
10 percent not later than 12 January 1994.

The applicant was discharged on 12 January 1994 in the rank of Staff Sergeant E-6.  His MOS as shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) was 19K3X, armor crewman.  He had 15 years, 
6 months, and 7 days of service.  His DD form 214 shows that he was retained in the service for 279 days for the convenience of the government.  He received disability severance pay in the amount of $43,171.20.

DA MILPER message 93-164, dated 20 April 1993, prescribes eligibility requirements and application procedures for early retirement for enlisted soldiers under the FY 93 early retirement program, and states in pertinent part, that personnel approved for early retirement will receive the same benefits as individuals with 20 or more years of service except their retirement pay will be reduced.  That message stated that the purpose of early retirement was to provide a temporary management tool to reshape the Army through FY 95.  Early retirement was not an entitlement, and would only be offered to soldiers and officers who met the strict eligibility requirements outlined in the message.  The temporary early retirement authority would be used to retire members whose skills were excess to the Army’s short term and long term needs.  Individuals approved for early retirement had to depart active duty no later than 
31 August 1993.   Soldiers had to hold a primary MOS and grade with a minimum number of years active service as of 31 August 1993 or earlier to be eligible for that program.  That message listed the MOS, and the grade and minimum number of years of service for each MOS.  MOS 19K was not included in that list.  That message went on to state that certain individuals were not eligible to apply for early retirement, including those not medically cleared (undergoing MEB/PEB evaluation) by the requested retirement date. 

DA MILPER message 93-233, dated 10 August 1993, prescribes eligibility requirements and application procedures under the FY 94 early retirement program.  That program was similar to the announced FY 93 program.  Individuals approved for early retirement under the FY 94 program had to depart active duty no later than 31 August 1994.  That message also listed the MOS eligibility requirements.  The MOS of 19K in the rank of Staff Sergeant was included in this list; however, the minimum number of years of active service as of 31 August 1994 for that MOS and rank was 19 years.  That message also stated that personnel not medically cleared by the requested early retirement date were ineligible to apply.  Requests for early retirement could not be submitted prior to 15 August 1993. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  Early retirement was not an entitlement but used to retire members whose skills were excess to the Army’s short term and long term needs. The applicant was not eligible for early retirement under either the FY 93 or the FY 94 early retirement program.  Because he did not meet the eligibility requirements, he could not have applied had he wanted to.  His discharge for disability with severance pay was proper.  There is no error in his record nor has he suffered an injustice. 

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

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_CMF___  __INW__  __MKP__  DENY APPLICATION

						Loren G. Harrell
						Director