MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 September 2002                   
	DOCKET NUMBER:   AR2002068162

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Karen Y. Fletcher		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 Item 26 (Separation Code), Item 27 (Reentry Code) and Item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to allow him to reenlist.

APPLICANT STATES:  That in accordance with "Message 070001Z, January 1992," his separation was voluntary.  The applicant submits in support of his request a copy of his DD Form 214; a copy of a DA Form 4187 (Personnel Action), dated 5 February 1992; copies of parts 1-3 of MILPER Message 222100Z  December 1991 and MILPER Message P202100Z December 1991, all with subject:  Voluntary Incentive Program to Support Army Draw-Down; Orders 107-18, Headquarters III Corps, Fort Hood, Texas, dated 2 June 1992; and an Endorsement to Orders 107-18, dated 4 June 1992.  It is noted that the applicant did not provide a copy of message 070001Z January 1992 that he references above.

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

On 1 November 1988, the applicant enlisted in the Delayed Entry Program (DEP).  On 10 November 1988, he was discharged from the DEP and he reenlisted in the RA for 4 years, for military occupational specialty (MOS) 52D (Power Generation Equipment Repairer) and for pay grade E-4 with a date of rank of 10 November 1988.

On 21 November 1989, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for operating a privately owned vehicle while drunk on 20 October 1989.  His punishment included reduction from pay grade E-4 to pay grade E-2, forfeiture of $390.00 pay per month for 2 months (both suspended until 21 May 1990) and 45 days of extra duty.  This was the applicant's second drunk driving offense.  During his previous period of active military service, he was reduced in rank for the same offense.

On 4 February 1992, the applicant requested voluntary release from active duty under the provisions of the Special Separation Benefit (SSB) program and, on 25 February 1992, his request was approved.

The available records do not contain all of the facts surrounding the applicant's separation.  However, his DD Form 214 shows that, on 10 August 1992, he was released from active duty under the provisions of chapter 16-8, Army Regulation 635-200, as a result of the Qualitative Retention Program and assigned a separation code of "JCC" for the narrative reason "due to reduction in force."  He was also assigned an RE code of RE-4.  He had completed 3 years, 9 months and 1 day on the enlistment under review and he had completed a total of 9 years, 10 months and 18 days of prior active service.  As part of his involuntary separation, he was paid full separation pay in the amount of $19,823.57; he was not paid SSB.  

On December 5, 1991, Congress authorized the Voluntary Separation Incentive (VSI) and Special Separation Benefit (SSB) programs, which took effect in 1992 [Pub. Law. No. 102-190, 20661-20664, 105 Stat. 1290, 1394-99 (1991) (codified at 10 U.S.C. 201174a-201175)].  These incentive programs were designed to induce members of the Armed Forces to leave the military voluntarily.  Under both of the programs, qualifying service members who voluntarily left active duty before their retirement vested received benefits based on their salary at the time of separation and on years of service.  The service member was permitted to choose a series of annual payments, referred to as a voluntary separation incentive, or a lump-sum special separation benefit.  In order to qualify, a soldier must:  have served on active duty for more than 6 but less than 20 years; have served at least 5 years of continuous active duty immediately preceding the date of separation; if a Reserve, be on the active duty list; and meet such other requirements as the Secretary may prescribe from time to time, which may include requirements relating to -- years of service; skill or rating; grade or rank; and remaining period of obligated service.

Separation pay is a third type of cash payment made to a soldier leaving active duty and it has been in existence for decades.  Generally, separation pay is available to soldiers with good records who are qualified to remain in uniform, but are denied reenlistment or continuation of service.  The amount of separation pay equals 10 percent of the annual basic pay multiplied by the number of years of active service, rounded to the nearest month.  A soldier receives separation pay in a lump sum on the day of separation.  A soldier may be separated with full separation pay or with half separation pay.  Half separation pay is computed using the above formula and the final figure is divided in half.  A soldier receiving separation pay must agree to spend at least 3 years after separation in the Ready Reserve.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlisting and processing into the RA and the eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes and RA RE codes. 

An RE code of RE-4 and a separation program designator (SPD) code of "JCC" applies to those individuals discharged under the provisions of chapter 16-8, Army Regulation 635-200, as a result of the Qualitative Retention Program, due to reduction in force.  An RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.

The Retention Control Point (RCP) is basically an "up or out" measure.  Each rank in the Army has a RCP.  A soldier holding a certain rank can't exceed the RCP for that rank, by more than 29 days.  They must be promoted or selected for promotion for the next higher grade prior to reaching their current rank RCP or they will be involuntarily separated.  As a part of the overall drawdown of Army end strength in 1992, the RCP for E-4 and below was reduced from 13 years to 8 years.

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 applied for SSB and was approved for it by his chain of command; however, by law, he was not entitled to this incentive because he did not meet the criteria of having served at least 5 years of continuous active duty immediately preceding the date of his separation.

3.  Although the applicant's records do not contain his separation packet, his DD Form 214 shows that he was involuntarily separated under the provisions of chapter 16-8, Army Regulation 635-200, as a result of the Qualitative Retention Program, and that he was given full separation pay.  Based upon the stated separation authority and narrative reason for separation, his separation code and reentry code are correct.

4.  At the time of separation, the applicant was an E-4 with more than 13 years of active military service.  Therefore, his RCP exceeded his rank and he would have been involuntarily separated.  He would not have qualified for voluntary separation with the SSB incentive.

5.  The applicant's separation was accomplished in compliance with applicable laws and regulations in effect at the time with no indication of procedural errors, which would have jeopardized his rights.     

6.  The applicant has provided this Board with no evidence that supports a basis for removal of his current SPD code, his RE code or his narrative reason for separation.  He was released and assigned a separation code and a narrative reason for separation in accordance with regulations then in effect. 

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

__rvo__  __rjw___  __kyf___  DENY APPLICATION

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

INDEX

CASE ID	AR2002068162	
SUFFIX		
RECON		
DATE BOARDED	20020926	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19920810	
DISCHARGE AUTHORITY	AR635-200 	
DISCHARGE REASON	A05.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.0500	
2.		
3.		
4.		
5.		
6.		

not qualified for continued Army service. Those individuals discharged under the provisions of chapter 16-8, Army Regulation 635-200, the Qualitative Retention Program