MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            25 July 2000                  
	DOCKET NUMBER:    AR2000043264

	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. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John H. Kern		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 his records be corrected to show that he was given an early retirement under the Temporary Early Retirement Authority (TERA), and that his Pay Entry Basic Date (PEBD) and his Basic Active Service Date (BASD) be corrected to show that he had sufficient qualifying service for retired pay to qualify for early retirement under the TERA.

APPLICANT STATES:  That he was the victim of a plot when he was wrongly accused of hitting a female noncommissioned officer.  He had only bumped into her shoulder to shoulder.  He continues that since every rule has an exception to policy, he should be granted an early retirement under the TERA.  He adds that early retirements were offered and given to other enlisted soldiers when he was discharged in 1988.

In support of his application he provides a calculation of his military service which he prepared.  In that service computation he states that his PEBD should be the date on his draft card, the date he was classified 1-A for induction purposes, and that the time he spent in the USAR not on extended active duty should be creditable towards his BASD.

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

He was inducted on 10 October 1968, served as a repair parts specialist in Vietnam, was promoted to pay grade E-4, and was honorably released from active duty on 16 May 1970.  He had 1 year, 6 months and 23 days of active service during that period.

There is no record of the applicant performing any military duty until he enlisted in the Army National Guard on 20 December 1972.  He was honorably discharged from the ARNG on 21 January 1974, the day prior to his enlistment into the Regular Army.  He served in the Regular Army in the military occupational specialty of administrative specialist and was promoted to the rank of staff sergeant.

On 21 December 1987 the applicant accepted nonjudicial punishment under Article 15, UCMJ, for striking a superior noncommissioned officer.  His punishment consisted of a forfeiture of $300.00 per month for 2 months, and a suspended reduction from pay grade E-6 to E-5.

On 17 February 1988 the applicant was notified that he had been selected for a Department of the Army bar to reenlistment under the Qualitative Management Program (QMP).  The stated reasons for his selection were nine substandard or adverse evaluation reports and two nonjudicial punishments, one which he accepted in 1969, the other in 1982.

The applicant was then given the option to submit an appeal to his bar, to complete his remaining term of enlistment, or to request a discharge earlier than the expiration of his term of service.  He elected the latter.

Accordingly, on 1 July 1988 the applicant was honorably discharged due to his QMP bar to reenlistment.  The separation form (DD Form 214) he was issued showed that he had 2 years, 3 months and 20 days of prior active service, and 2 years, 11 months, and 9 days of prior service in the USAR not on extended active duty.  The personnel qualification record (DA Form 2A) contained in the applicant’s record shows his PEBD as 24 October 1968 and his BASD as 3 October 1971.

The TERA was established by Section 4403 of the National Defense Authorization Act for Fiscal Year 1993 (Public Law 102-484).  Subparagraph (i) of this law states that “For purposes of this section, the active force drawdown period is the period beginning on the date of the enactment of this Act (Oct. 23, 1992) and ending on October 1, 1999.”  The TERA was applied by the Army to drawdown the force in a structured manner.  Accordingly, it was only offered to enlisted soldiers in certain pay grades and military occupational specialties.  It was also limited to those soldiers who were not pending separation for other reasons, which included soldiers who had been selected for a QMP bar to reenlistment.

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

1.  The applicant’s record of nine substandard or adverse evaluation reports and two nonjudicial punishments (the nonjudicial punishment which he was given for striking a senior noncommissioned officer wasn’t cited as a reason for his bar since the promotion board which selected him for his bar to reenlistment convened prior to his acceptance of that NJP) are certainly reasonable grounds to bar the applicant from reenlistment.  The Board notes that the applicant did not appeal either his substandard/adverse evaluation reports or his QMP bar to reenlistment.  As such, the Board concludes that the applicant’s discharge due to a QMP bar to reenlistment was appropriate and there is no reason to change it.

2.  The law which established the TERA specified that it was effective on 23 October 1992.  The applicant was discharged almost 4 years prior to that date.  Obviously, the applicant cannot be retired under statutory authority which did not yet exist.

3.  In addition, even if the TERA was in effect at the time of the applicant’s discharge he would not have been eligible to participate in that program.  His selection for separation under the QMP would have prohibited his early retirement under the TERA.

4.  Since the applicant is not eligible for early retirement under the TERA his request to correct his PEBD and his BASD are not pertinent issues.  However, the Board was of the opinion that that portion of his request should be considered to insure that there was no error in those computations.  In that regard the applicant’s PEBD correctly correlates to the date he initially entered on active duty when he was inducted.  The date he was classified for induction is not a soldier’s PEBD.  As for his BASD, there is no evidence or indication that the applicant was on active duty the entire time he was in the ARNG.  Since a soldier’s BASD is computed by adding only the time the soldier was on active duty, the applicant would only be credited with the time he served on active duty for training, annual training, or special active duty for training while he was assigned to the ARNG.  Since the applicant was credited with 2 years, 3 months and 20 days of prior active service in the computation of his BASD, and he served only 1 year, 6 months and 23 days following his induction, it is evident that he has been properly credited with the active service he has performed.  As such, the applicant has not submitted any evidence, which would show that his PEBD or BASD are incorrect.

5.  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

__tsk  ___  ____sk__  ___jhk___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000044540	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000725	
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.	110.03	
2.		
3.		
4.		
5.		
6.