MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            15 May 2003       
	DOCKET NUMBER:   AR2003086040

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Roger W. Able		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 discharge be changed to an early retirement.

APPLICANT STATES:  That he was not advised of his options when he received his discharge.  He was only recently advised that he had enough time (over      16 years of active duty) to retire as an E-5.  He served in the same infantry unit for  9 years.  He tried to transfer a number of times to no avail.  He saw commander after commander pass through, then the last one saw fit to reduce him to E-5 for being late to formation and because he said he (the applicant) lied to him (the commander).  He was offered a chapter 16-8 which he took not knowing he could retire.  He was sent home with a few dollars and limited benefits.  He provides no supporting evidence.

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

After having had prior service, he reenlisted in the Regular Army on                   20 November 1979.  He was promoted to Staff Sergeant, E-6 on 3 March 1985 in primary military occupational specialty (MOS) 76Y (Unit Supply Specialist, later redesignated MOS 92Y, Unit Supply Specialist).

The applicant was assigned to the 2d Battalion, 502d Infantry at Fort Campbell, Kentucky in June 1985.  He reenlisted on 15 August 1988 for 6 years for overseas area reenlistment option – Europe, making his expiration term of service (ETS) 14 August 1994.  His DA Form 2-1 (Personnel Qualification Record) shows he was assigned to Europe from 21 July through 5 August 1989, when for an unknown reason he was reassigned back to the 2d Battalion, 502d Infantry at Fort Campbell.  

The applicant served in Southwest Asia during Operation Desert Shield/Storm where he was awarded the Bronze Star Medal for meritorious achievement.

On 16 April 1992, the applicant extended his reenlistment for a period of           14 months (making his new ETS 14 October 1995) to met the service remaining requirement for assignment to Alaska.  He was apparently deleted from this assignment for an unknown reason.

A DA Form 4187 (Personnel Action) dated 27 April 1994 shows the applicant was reduced to Sergeant, E-5 effective 26 April 1994.  No Article 15 or other reduction action is available.  

The applicant's Noncommissioned Officer Evaluation Report for the period March 1993 through February 1994 shows he received a "NO" check in Part Iva(5) (Maintains high standards of personal conduct on and off duty) with a related comment of "conduct not becoming of an NCO or soldier."  There is no other negative comment on the report.
No discharge packet is on file in the applicant's military personnel records.

On 15 June 1994, the applicant was honorably discharged, in the rank and grade of Sergeant, E-5, after completing a total of 16 years and 2 months of creditable active service.  He was authorized $31,038.06 in separation pay.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) apparently erroneously shows the separation authority as Army Regulation 635-200, chapter 4, the narrative reason for separation as completion of required active service, and the separation code as JBK (involuntary discharge under the provisions of Army Regulation 635-200, chapter 4, upon completion of required active service). 

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-8 provided that soldiers could be separated prior to their ETS when authorization limitations, strength restrictions, or budgetary limitations required a reduction in enlisted strength.  Early separation under this paragraph was for the convenience of the Government.

Army Regulation 635-200, chapter 4 was for separation for expiration of service obligation (discharge or release from active duty upon termination of enlistment and other periods of active duty).

Military Personnel Message Number 93-223, Subject:  Fiscal Year 1994 Early Retirement Program, prescribed eligibility requirements for early retirement for Regular Army enlisted soldiers and active duty commissioned officers.  It stated that, with certain exceptions (i.e. some categories of promotable E-5s and soldiers with a bar to reenlistment or declination of continued service statement with over 18 years of active service), soldiers must have held a primary MOS and grade with the minimum number of years active service as of 31 August 1994 as indicated in the message.  This message listed MOS 92Y; however, only for E-6s with over 18 years of active service and for E-7s with over 17 years of active service.

Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD JCC should be used when the separation authority is Army Regulation 635-200, chapter 16-8 with the narrative reason for authority reduction in force.

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 Board did not have the applicant's reduction action (whether Article 15 or some other vehicle) or the discharge packet available to consider.  The Board notes that there appears to be an error on the applicant's DD Form 214.  Considering his ETS was 14 October 1995, his separation on 15 June 1994 could not have been due to completion of required active service under the provisions of Army Regulation 635-200, chapter 4. 

3.  The Board has determined, however, that the applicant did not meet the eligibility requirements for early retirement in fiscal year 1994.  In the applicant's primary MOS of 92Y, early retirement was authorized only for E-7s with over     18 years of active service and for E-6s with over 17 years of active service.  The applicant would not have met the criteria even if he had not been reduced to E-5. 

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

__aao___  __tap___  __rwa___  DENY APPLICATION

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

INDEX

CASE ID	AR2003086040	
SUFFIX		
RECON		
DATE BOARDED	20030515	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	136.05	
2.		
3.		
4.		
5.		
6.