ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 March 2020 DOCKET NUMBER: AR20170003228 APPLICANT REQUESTS: Request an exception to policy (ETP) to permit him to retire under the provisions of the Temporary Early Retirement Authority (TERA) announced in Army Directive (TERA) 2016-27. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * On-Line Application * Orders * Army Directive 2016-27 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Notification of Promotion Status FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states on 6 October 2015, he was notified due to non-selection for promotion he would be discharged no later than 1 June 2016. The notification allowed the alternative option to be transferred from the Army National Guard (ARNG) to the Retired Reserve and he requested that option. He was separated and retired as a gray area retiree, effective 31 May 2016. Upon retirement, he had completed 16 years and 1 month of active service (with a total of 32 years Active Duty, ARNG and U.S. Army Reserves). On 23 June 2016, Army Directive 2016-27 was published and provided Soldiers who had completed at least fifteen years of active service the option for early retirement. As a gray area retiree, he will not be eligible for full retirement benefits until he reaches the age of 60. If the information in Army Directive 2016-27 had been available prior to his 31 May 2016 separation, he would have requested the early retirement option, in order to continue essential benefits for the welfare of his family. He is seeking the opportunity to obtain retirement through TERA at this time. 4. On 11 August 2005, the applicant was notified he had completed the required years of service and would be eligible for retired pay upon application at age 60. 5. On 6 October 2015, the applicant was notified he was not selected for promotion and as a result of his non-selection we must be discharged effective 1 June 2016, unless he: * was eligible for and request transfer to the Retired Reserve * had a remaining obligation * had been credited with 10 or more but less than 20 years of qualifying Federal service for retired pay * transferred to an inactive status if determined by the Secretary of the Army to have skills, which are required to meet mobilization. 6. The applicant was released from active duty on 31 May 2016, due to completion of required active service. 7. Orders 134-008, issued by District of Columbia Nation Guard, dated 13 May 2016, shows the applicant was transferred to the Retired Reserve effective 31 May 2016. 8. Army Directive 2016-27, dated 23 June 2016, provided TERA in lieu of involuntary separation, involuntary release from active duty, or involuntary release from active service for officers who, pursuant to Title 10, United States Code (USC), section 631 or 632, twice were not selected for promotion, whose names are not on a list of officers recommended for promotion, and who have at least 15 years but less than 20 years of service, as computed under 10 USC 3926. The provisions outlined in this directive were effective immediately and were to be rescinded on 31 December 2018, unless earlier revoked, modified, or rescinded. There were no provisions within the document for its application prior to the effective date. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board noted the facts presented above. The Board found no error or injustice in his non-selection and the resulting directive that he be discharged by 1 June 2016. The Board also noted that he exercised his option to be transferred to the retired Reserve in lieu of discharge. The Army Directive 2016-27 authorizing TERA for Soldiers with 15 or more years of active service which was published and effective on 23 June 2016 did not authorize retroactive application of these provisions prior to 23 June 2016. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for exception to policy. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 12/2/2020 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Directive 2016-27, dated 23 June 2016, provided TERA in lieu of involuntary separation, involuntary release from active duty, or involuntary release from active service for officers who, pursuant to Title 10, United States Code (USC), section 631 or 632, twice were not selected for promotion, whose names are not on a list of officers recommended for promotion, and who have at least 15 years but less than 20 years of service, as computed under 10 USC 3926. //NOTHING FOLLOWS//