MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 August 1999  
	DOCKET NUMBER:   AR1999021077

	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	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ernest W. Lutz, Jr.		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, entitlement to retired pay.

APPLICANT STATES:  She was told by her personnel office and chain of command that she would be able to retire but when she submitted her paperwork the application was denied because she only had 15 years and 10 days of active Federal service and not the required 15 years and 29 days.  (Note:  The applicant submitted no evidence in support of her request and the only records available to the Board were copies of her Official Military Personnel File (OMPF) on microfiche.)

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

She entered active duty on 21 January 1981 and served continuously until 
30 January 1996.  She was promoted to pay grade E-5 in April 1990 and reenlisted on two separate occasions.  Her last reenlistment, for a period of 
2 years, was on 3 July 1990.

The applicant’s separation report notes that her “extension of service was at the request and for the convenience of the government” and that she received more than $30,000.00 in separation pay.  She was involuntarily separated under the provision of Army Regulation 635-200, paragraph 16-8, in pay grade E-5.

Army Regulation 635-200, paragraph 16-8 provides for the involuntary separation of soldiers due to reduction in force, strength limitations, or budgetary constraints.  It states that when authorization limitations, strength restrictions, or budgetary constraints require the size of the enlisted force to be reduce, the Secretary of the Army, or his designee, will authorize voluntary or involuntary early separation under the authority of Title 10 of the US Code.

Army Regulation 601-280, which establishes the policies and procedures for the reenlistment of enlisted soldiers on active duty, states that soldiers otherwise qualified, may be reenlisted or extended provided the reenlistment or extension will not cause the soldier to exceed the retention control point for the individual’s grade by more than 29 days.  Soldiers who have attained local order-of-merit or official Department of the Army promotion list status, will be considered for reenlistment under the retention control point for the rank to which they will be promoted.

In 1990 the retention control point (RCP) for individuals in pay grade E-5 was 13 years and for “promotable” E-5s (those with promotion list standing to pay grade E-6) the RCP was 20 years.  In January 1992 Department of the Army announced that the RCP for E-5 promotables would be decreased from 20 to 15 years effective 1 October 1993.

In August 1995 Department of the Army announced implementation instructions for the FY96 early retirement program.  The program noted that early retirement was not an entitlement and would be offered only to soldiers who met strict eligibility requirements.  There were three categories of eligible soldiers:

	CATEGORY A:  Applied to soldiers with a bar to reenlistment or who had signed a declination of continued service statement and had completed more than 18 years of active Federal service on the requested retirement date.  Such soldiers could apply for early retirement regardless specialty or grade.  This category was open for the entire fiscal year.

	CATEGORY B:  Applied to promotable sergeants (SGT(P)) who were allowed to reenlist prior to 1 October 1993 so as to have a separation date (ETS) at more than 15 years and 29 days.

	CATEGORY D:  Applied to promotable sergeants (SGT(P)), regardless of specialty with a BASD on or before 30 September 1978.  (Note:  there was no category C announced as part of the FY96 program.)

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

1.  Although the applicant submitted no evidence in support of her application and information contained in available files is limited it appears that at the time the applicant would have been able to reenlist in 1992 (2 years after her 1990 reenlistment) she would have been an E-5 with a RCP of 13 years.  As such she would not have been able to reenlist but rather would only have been allowed to extend her current enlistment contract so as not to exceed 13 years and 29 days, in accordance with the provision of Army Regulation 601-280.  If the applicant had been on an E-6 promotion list in 1992 she would have been allowed to reenlist for up to 6 years based on the RCP for promotable E-5 (which, prior to 1 October 1993, was 20 years).

2.  Based on the fact that she was not involuntarily separated from active duty until 1996 it appears the applicant must have attained promotion list status as an E-6 after 1 October 1993, thus enabling her to remain on active duty (via an enlistment contract extension) until she reached the 15 year RCP.  Had she attained E-6 promotion status prior to 1 October 1993 she would have been allowed to reenlist under the original 20 year RCP.

3.  The FY96 early retirement program was specifically limited to certain individuals.  In this particular case the applicant apparently believes she should have been allowed to retire under Category B, in spite of the fact that she had only 15 years and 10 days at the time of her separation.  In actuality it was not the applicant’s amount of service, which made her ineligible for the early retirement program but rather the fact that she, because of the existing RCP, precluded her reenlistment prior to 1 October 1993.

4.  The Board notes that clearly the intent of allowing soldiers in Category B to participate in the early retirement program was to provide compensation to those soldiers who had been on a promotion list to E-6 prior to 1 October 1993 and had reenlisted prior to that date with the expectation that they would be allowed to remain on active duty until completion of 20 years of service (the original RCP for E-6s).  Soldier’s, like the applicant, who were not on E-6 promotion lists and as such not allowed to reenlist were clearly aware that prior to 1 October 1993 they would only be allowed to remain on active duty through their thirteenth year.  Those who attained promotion list after 1 October 1993, like the applicant, were also aware that if they were not promoted they would be required to separate at the completion of their fifteenth year.  There was no “expectation” of retirement for these individuals and as such no basis to participate in the early retirement program. 

5.  The applicant’s involuntary separation with entitlement to separation pay was accomplished in accordance with laws and regulations in effect at the time.  There is no evidence of any substantive violation of the applicant's rights.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  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

__mdm__  ___aao__  ___ewl__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021077	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990805	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 110.00		
2.		
3.		
4.		
5.		
6.