IN THE CASE OF: BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20150015885 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20150015885 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________x_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20150015885 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests a military retirement with pay. 2. The applicant states inactive Reserve service was required and signed for as a condition of his SSB (Special Separation Benefit) pay. He was discharged for failing to meet weight control standards. He should have a military retirement with pay upon reaching a certain age. 3. The applicant does not provide any additional evidence. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was born in April 1962. He enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) for 6 years on 14 April 1981. He acknowledged that: * his period of service in the DEP is creditable for pay purposes upon enlistment in the Regular Army (RA) * his period of service in the DEP is not counted toward fulfillment of his military service obligation or commitment 3. He was discharged from the DEP 4 months and 5 days later on 18 August 1981. He enlisted in the RA for 4 years on 19 August 1981. He was trained in and held military occupational specialty 19K (M-1 Armor Crewmember). 4. He served in a variety of stateside or overseas assignments, reenlisted in the RA for 5 years on 26 September 1987 and for 4 years on 27 September 1991. He attained the rank/grade of staff sergeant/E-6. 5. On 1 March 1993, his commander initiated a Bar to Reenlistment Certificate against him citing his consecutive Army Physical Fitness Test failures. The Commanding General reviewed the bar and approved it. 6. On 14 May 1993, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 5-15 of Army Regulation (AR) 635-200 (Personnel Separations) due to failing to meet weight control standards. He was advised of his rights. 7. Following the applicant's acknowledgement/legal counsel consult, his commander initiated separation action against him. The chain of command recommended approval. 8. On 20 May 1993, the separation authority approved the discharge action with an honorable characterization of service and transferred him to the Individual Ready Reserve (IRR). 9. On 24 May 1993, Headquarters, 24th Infantry Division, Fort Stewart, GA published orders assigning him to the separation point for separation processing, effective 4 June 1993. The orders indicated he was authorized half separation pay in accordance with Title 10, U.S. Code, section 1174, contingent on taking the appropriate action to enlist in the Ready Reserve for 3 years. 10. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 4 June 1993 in accordance with paragraph 5-15 of AR 635-200 for failing to meet Army Weight Control Standards. He completed 11 years, 9 months, and 16 days of active service and 4 months and 5 days of inactive service (DEP service). He was assigned separation code JFV and he received separation pay. REFERENCES: 1. Title 10, U.S. Code, section 1174(b) states (1) a regular enlisted member of an armed force who is discharged involuntarily or as the result of the denial of the reenlistment of the member and who has completed six or more, but less than 20, years of active service immediately before that discharge is entitled to separation pay computed under subsection (d) unless the Secretary concerned determines that the conditions under which the member is discharged do not warrant payment of such pay; (2) Separation pay of an enlisted member shall be computed under paragraph (1) of subsection (d), except that such pay shall be computed under paragraph (2) of such subsection in the case of a member who is discharged under criteria prescribed by the Secretary of Defense. 2. TERA (Temporary Early Retirement Act) was enacted by Congress on 23 October 1992 as part of the Fiscal Year 1992 (FY92) National Defense Authorization Act (NDAA). a. Its intent was to assist in the military draw-down of forces by permitting selected military members to retire early when they had between 15 and 20 years of service. Additional years of service could be accumulated, even though not serving in military uniform, during a period called "Enhanced Retirement Qualification Period (ERQP)." b. The ERQP was that period from the date of retirement to the date on which the retiree would have attained 20 years of creditable service for the purpose of computing retired pay. The additional years were earned by service in military Reserve Components or employment in qualifying public or community service organizations – called the Public and Community Service (PACS) program. At age 62, the TERA retiree was permitted to have their retired pay recomputed and increased accordingly. c. The Secretaries or the respective services designated the ranks and military specialties that were eligible to apply according to the needs of the service. Retirement under this program was not a right; it is granted on an individual basis according to the requirements of the service. The TERA program ended on 30 September 2001. 3. The FY92 NDAA also established the Enlisted Voluntary Early Transition Program with entitlement to the Voluntary Separation Incentive (VSI)/Special Separation Benefit (SSB). This program was to assist in maximizing voluntary separation during the drawdown period of military forces, established a separation incentive called the VSI program. On 20 December 1991, the Department announced the provisions of the FY92 NDAA, which established the VSI program and two separation incentive options. Both separation incentive options, the VSI and the SSB, were offered jointly. Service members who were approved for the VSI program had the option of receiving either the VSI or the SSB. Those who chose the SSB received a lump sum payment equal to 15 percent of his/her annual basic pay multiplied by 12 and multiplied again by his/her number of years of active military service. In return, they had to agree to serve in the Ready Reserve for a period of not less than 3 years after completion of any remaining statutory obligation. DISCUSSION: 1. The applicant served on active duty from August 1981 to June 1993. He was discharged on 4 June 1993 as a result of failing to meet weight control standards and not due to any other reason. His discharge authorized him separation pay contingent on enlisting for 3 years in the Ready Reserve. This enlistment was for the purpose of receiving the separation pay. 2. In order to retire for length of service, the applicant would have had to complete at least 20 active duty years to be eligible for retirement due to sufficient active service. He only completed 11 years, 9 months, and 16 days of active service. He does not meet the criteria for length of service retirement. 3. He mentions the SSB (part of the FY92 Enlisted Voluntary Early Transition Program). Those who chose the SSB received a lump sum payment and in return, they agreed to serve in the Ready Reserve for a period of not less than 3 years after completion of any remaining statutory obligation. This is not the case here. His discharge was not due to voluntary separation during the drawdown. His discharge was due to failing weight control standards. 4. Also part of the FY92 NDAA was TERA. Its intent was to assist in the military draw-down of forces by permitting selected military members to retire early when they had between 15 and 20 years of service. Additional years of service could be accumulated, even though not serving in uniform, during a period called ERQP. The applicant did not meet the criteria for retirement under this program. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015885 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015885 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2