IN THE CASE OF: BOARD DATE: 18 February 2016 DOCKET NUMBER: AR20140020336 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, in effect, to be placed on the Retired List with 15 1/2 years of service under the provisions of the Temporary Early Retirement Authority (TERA). 2. The applicant states, in effect: * he was honorably discharged under the Special Separation Benefit (SSB) program * he contends the Army misinformed him by holding back information about the planned TERA program, which was initiated in January 1993 * instead, he was discharged with a Voluntary Separation bonus under threat of being separated later that year * he feels he, and others, were purposely misled so the Army could meet its end-strength goals * at the time of his separation, he asserts he had 15 1/2 years of active service * the early retirement program should have been offered to him 3. The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty). 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. After having had prior enlisted service in the Regular Army, the applicant reenlisted in the Regular Army on 11 August 1981. 3. He was identified for release from active duty under the SSB program. Based upon his request, on 12 May 1992, he was approved for the Fiscal Year (FY) 1992 Enlisted Voluntary Early Transition Program with Voluntary Incentive. His separation month was shown as September 1992. 4. His available service record contains: a. A DD Form 4, dated 3 July 1992, which indicates he enlisted in the U.S. Army Reserve (USAR), Individual Ready Reserve, for a term of 3 years. b. An Optional Form 271 (Conversation Record) which shows an exception to policy was approved for the applicant to be released in July rather than September 1992. There is no explanation provided as to why this change was requested. 5. He was honorably released from active duty on 2 July 1992. His DD Form 214 shows he completed 10 years, 10 months, and 22 days of net active service with 3 years, 11 months, and 29 days of prior active service (total active service equaling 14 years, 10 months, and 21 days), and 2 years, 1 month, and 19 days of prior inactive service. a. He is shown as being transferred to the USAR Control Group (Reinforcement). b. His DD Form 214 shows he was authorized an SSB payment of $46,786.41. c. The separation authority is Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 16-8 (Reduction in Authorized Strength). d. The narrative reason states Voluntary Early Transition Program (SSB). 6. Military Personnel Message 92-85, dated 7 January 1992, announced the implementation instructions for the enlisted voluntary incentive programs in support of the Army's drawdown. a. Incentives were offered to separate Soldiers who under existing policies would have been allowed to continue on active duty until eligible for retirement. The voluntary separation incentive (VSI) and SSB were offered to selected members. b. Soldiers who met the eligibility criteria were required to enter into a written agreement to separate from active duty and accept an enlistment or transfer to the Ready Reserve. Applications for separations under the provisions of the VSI/SSB did not guarantee approval. Only those applications that met the strict requirements established by Headquarters, Department of the Army, were approved. c. For SSB, an eligible member of the Armed Forces would receive a lump sum payment equal to 15 percent of the Soldier’s annual basic pay multiplied by his years of active service. d. The VSI was an annual annuity payment equal to 2.5 percent of the Soldier’s annual basic pay multiplied by his years of service and paid for twice the number of years served. Soldiers approved for VSI must have been appointed, enlisted, or transferred to the Ready Reserve for the entire period they received VSI annual payments. 7. TERA was enacted by Congress on 23 October 1992 as part of the National Defense Authorization Act of Fiscal Year 1993. 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 total active duty service. Additional years of service could be accumulated, even though not serving in military uniform, during a period called the 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 program. c. At age 62, the TERA retiree was permitted to have their retired pay recomputed and increased accordingly. d. 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 was granted on an individual basis according to the requirements of the service. e. The TERA program ended on 30 September 2001. DISCUSSION AND CONCLUSIONS: The applicant requests to be retired under the provision of TERA. The evidence of record shows he was not eligible to be retired under that program. TERA was not enacted by Congress until October 1992, after the applicant's date of separation. His claim that the Army withheld information on TERA is noted; however, he has provided no documentary evidence to support that claim. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20140020336 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140020336 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1