MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 May 2000                   
	DOCKET NUMBER:   AR2000035239

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John H. Kern		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:   That he be awarded a voluntary early retirement under the Voluntary Early Retirement Program (VERP) as of 31 March 1998 with back retired pay appropriately offset by the separation pay he received.

APPLICANT STATES:  The applicant defers to counsel.

COUNSEL CONTENDS:  That the applicant was prevented from applying for the Fiscal Year 1997 (FY 97) VERP because it was closed to engineer officers although he met the time-in-service (15 years) criteria by February 1997.  He was then prevented from completing 20 years of service for a normal length of service retirement because his mandatory removal date (MRD) was 31 March 1998.  He had earlier sought out advice regarding the VERP but was first told it would not exist in 1997.  When he found out it did exist, he was told engineers were excluded.  The combination of his MRD and his exclusion from applying for the VERP have worked to create an injustice.

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

That he initially enlisted in the Regular Army.  He was commissioned out of Officer Candidate School and served as an engineer branch officer on active duty until January 1969.  After serving in the U. S. Army Reserve (USAR) and the Army National Guard not on active duty, he was voluntarily ordered to active duty in an active Guard/Reserve (AGR) status on 7 October 1985.  He was promoted to lieutenant colonel on 20 June 1993.  He had an MRD of 31 March 1998.

Headquarters Department of the Army, DAAR-PE message 041200Z August 1995, subject:  Announcement of the FY 96 USAR AGR Officer Voluntary Early Retirement Program (VERP), announced the USAR AGR VERP for FY 96.  Engineer officers were ineligible to apply.  

Informal notes provided by the applicant show that he discussed his promotion, MRD and the VERP with his personnel management officer (PMO) in June 1996. One of the questions he asked was how likely it was for an engineer to get an MRD extension.  The answer was apparently “still need engineers.”

Headquarters Department of the Army, DAAR-PE message 191200Z December 1996, subject:  The FY 97 USAR AGR Officer Voluntary Early Retirement Program (VERP) and Voluntary Separation Incentive (VSI)/Special Separation Benefits Program (SSB), announced the FY 97 USAR AGR VERP and VSI/SSB policy for AGR officers.  This VERP was very restrictive.  The only officers eligible for the FY 97 VERP were AGR colonels except those in certain specific areas of concentration (AOC) (Judge Advocate General, Chaplain, Health Services, and Chemical) and those AGR lieutenant colonels who had an approved FY 96 early retirement and were retained in an AGR status because they did not have sufficient time in grade to retire in their current grade.  Retirement would be effective no earlier than 1 May and no later than                  1 September 1997.  Exceptions to the eligibility criteria would only be for extreme hardship or for the needs of the AGR program.

On 9 December 1997, the U. S. Army Reserve Personnel Center notified the applicant that he would reach his MRD on 31 March 1998.  He would be ineligible for retention to qualify for a 20-year retirement and he would have to be released from active duty no later than 31 March 1998.

In February 1998, the applicant was apparently notified that he was non-selected for promotion to colonel.

On 31 March 1998, the applicant was released from active duty and transferred to the USAR Control Group (Reinforcement) for maximum service.  He received separation pay of $101,759.25. 

Army Regulation 140-10 prescribes policies, responsibilities and procedures to assign, remove or transfer USAR soldiers.  In pertinent part, it states that lieutenant colonels will be removed from an active status when they complete   28 years of commissioned service.

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.  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.

2.  While the Board is empathetic with the applicant’s situation, he always knew that as a U. S. Army Reserve lieutenant colonel he would have to be removed from an active status at his 28th year.  It is unfortunate that both his branch and his years in an active status worked against him during the FY 96 VERP and that the FY 97 VERP was so restrictive; however, he has not shown that he was treated any different from any other officer in the same situation.  The Board concludes that there is no evidence of Government error or injustice.

3.  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

__rvo___  __jhk___  __ewl___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR2000035239	
SUFFIX		
RECON		
DATE BOARDED	20000503	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	136.00	
2.		
3.		
4.		
5.		
6.