MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 June 2002
	DOCKET NUMBER:   AR2001065191

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Regan K. Smith		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, that his records be corrected by changing the reason for his separation on 1 April 1995 from "NON-SELECTION, PERMANENT PROMOTION" to "VOLUNTARY EARLY RETIREMENT."

APPLICANT STATES:  In effect, that he had the required 15 years of service needed to qualify for early retirement, but the Army miscalculated and denied him his retirement.  He adds that he served on active duty as an enlisted soldier from 4 January 1973 to 12 December 1975 (2 years, 11 months, 9 days); in the North Carolina Army National Guard (NCARNG) from 23 June 1981 to 19 August 1982 (1 year, 1 month, 27 days); and as a commissioned officer on active duty from 13 August 1983 to 1 April 1995 (11 years, 7 months, 19 days).

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

He enlisted in the Regular Army for 3 years on 4 January 1973 and served until honorably separated on 12 December 1975.  Upon his discharge, he was placed in the US Army Reserve (USAR) Control Group (Reinforcement) where he was in an inactive status from 13 December 1975 to 3 January 1979.  On 23 June 1981, he enlisted in the NCARNG and served until 19 August 1982.  On 20 August 1982, he entered the National Guard's Simultaneous Membership Program (SMP) as a Reserve Officers' Training Corps (ROTC) student.  He was separated from the SMP on 23 July 1983.

On 13 August 1983, the applicant entered on active duty as a USAR officer and served until honorably separated on 1 April 1995 by reason of his two-time nonselection for promotion to the rank of major.

After receiving his first notice of nonselection for promotion to major in late 1993 (FY93), the applicant, on 15 September 1994, requested, as an exception to policy, that he be permitted to serve until 31 August 1995 and allowed separate by reason of early retirement on 1 September 1995 as a one-time nonselection for promotion to major.  He stated that he would have over 15 years of active Federal service on the date of his retirement.  On 27 October 1994 (FY94), Headquarters, Department of the Army (HQDA) disapproved his request for early retirement as an exception to policy stating that the applicant had a mandatory separation date of 1 April 1995 based upon his second nonselection for promotion to major and would not have 15 years of active Federal service by that date.

The applicant was separated with an honorable discharge on 1 April 1995.  He had 14 years, 7 months, and 13 days of active Federal Service and was entitled to separation pay.

Public Law 102-484, the FY93 Defense Authorization Act, also known as the Temporary Early Retirement Authority (or TERA), was enacted on 23 October 1992.  Section 4403 of that law gave the Military Departments the authority to permit early retirement of selected military members with more than 15 years but less than 20 years of active Federal service who met certain eligibility criteria established by each Military Department.  As established by the Army in MILPER Message Number 94-252, captains who were one-time nonselect for promotion to major by the FY94 major promotion board, with at least 15 but less than 20 years of active Federal service as of the requested retirement date, were eligible to apply for TERA consideration.

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 this requirement.

2.  The applicant was a two-time nonselect for promotion to major by the FY94 major promotion board and was given a mandatory separation date of 1 April 1995.  He did not qualify to apply for TERA consideration because the FY94 board was his second Passover for promotion to major, not his first.

3.  TERA consideration applies to active Federal service.  The applicant's service in the NCARNG was not active Federal service and may not be considered in calculating active Federal service.

4.  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

__jlp___  __aao___  __rks___  DENY APPLICATION

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

INDEX

CASE ID	AR2001065191	
SUFFIX		
RECON		
DATE BOARDED	20020604	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	136.0500	
2.		
3.		
4.		
5.		
6.