PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  9 November 2000
	DOCKET NUMBER:  AR20000036643

	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	
	Ms. Lee Tinsley		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. Orville W. Troesch		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, to be retired under the FY95 Enlisted Drawdown Phase II Expansion.

3.  The applicant states that he was informed in January 1995, by his First Sergeant, that he was eligible for early retirement.  The applicant then submitted the appropriate paperwork through his chain of command in a timely fashion and that the post commander held the paperwork past the closing date.

4.  The applicant enlisted and entered active duty on 14 June 1979.  He was awarded Military Occupational Specialty 95B (Military Police) and was promoted to the pay grade of E-6 on 6 August 1987.  During the applicant’s career he had a number of surgeries; two on his ankles, two for hernia repair and one for a cyst removal from his back.

5.  On 21 October 1994, MILPER Message 95-19, announced implementation for the FY95 Early Retirement and Early Release Program with VSI/SSB 
(Phase II).  On 29 December 1994, MILPER Message 95-068, announced the extension of the early retirement program (Phase II) to 31 January 1995.  His MOS of 95B was added to the approved list for retirement eligibility.

6.  On 11 January 1995 the applicant submitted a DA Form 4187 (Personnel Action) for early retirement.  His company commander approved and signed the DA Form 4187 the same day.  The request was forwarded to his battalion commander (Provost Marshal) and was approved, signed and forwarded to the post commander on 17 January 1995.  The applicant claims that the post commander “sat” on it and thus was not submitted before the deadline.

7.  Per telephone conversation with the PERSCOM (Total Army Personnel Command) it was determined that the applicant’s request did not meet the deadline and he was denied early retirement.  The applicant had already started out-processing because he was led to believe that his early retirement would be approved.  The applicant was notified of the denial on 6 March 1995.

8.  On 16 May 1995 the applicant was reassigned to the Medical Holding Company to complete medical treatment and final disposition of a Medical Evaluation Board (MEB).  On 11 July 1995 the Physical Evaluation Board (PEB) concluded that the applicant was unfit for duty and that his disposition would be 20 percent disability, separation with severance pay.  The applicant was discharged on 16 August 1995 with an honorable characterization of service and a total of 16 years, 2 months and 3 days of creditable service.

CONCLUSIONS:  

1.  The evidence of record indicates that the applicant submitted the appropriate paperwork through his chain of command to request early retirement.  The paperwork did not reach PERSCOM before the cutoff date and this resulted in the applicant being denied early retirement.

2.  Because the applicant’s request was denied, he then proceeded through medical channels to be retired.  The PEB determined that the applicant was only 20 percent disabled and therefore, because the rating must be 30 percent or higher for soldiers with less than 20 years of service, the applicant was again denied early retirement.

3.  In view of the foregoing, the applicant's records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to the individual concerned be corrected:

	a.  by voiding the separation order and DD Form 214 that separated him effective 16 August 1995.

b.  by issuing retirement orders and a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing that he was retired under the FY95 Early Retirement and Early Release Program with VSI/SSB (Phase II) on 
16 August 1995 and;

c.  by paying him back pay and allowances from the date of retirement, 
16 August 1995.

BOARD VOTE:  

      jp              bl             ot            GRANT AS STATED IN RECOMMENDATION

                                                           GRANT FORMAL HEARING

                                                           DENY APPLICATION

						         Jennifer L. Prater    
						        CHAIRPERSON

INDEX

CASE ID	AR2000036643	
SUFFIX		
RECON		
DATE BOARDED	20001109	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19950816	
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  108.00	Disability Separation vs Retirement	
2.		
3.		
4.		
5.		
6.