ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20170016026 APPLICANT REQUESTS: * discharge be revoked * reinstate back into the U.S. Army Reserve (USAR) * back pay and allowances * retirement under Temporary Early Retirement Authority * a personnel appearance hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * military biographical summary * power of attorney and attorney summary * Enlisted Record Brief * Noncommissioned Officer Evaluation Reports (NCOER) covering the periods of 1 November 1995 through 21 June 2013 * Service School Academic Evaluation Reports covering the periods of 1 July 1995 to 28 February 2003 * awards and commendations * Army Regulation (AR) 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation * request for appeal of NCOER * appeal of Enlisted Special Review Board (ESRB) * appeal of Qualitative Management Program (QMP) determination * request for release from active duty denial * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214 dated 27 April 2015 and 6 July 2015 * Reassignment orders * ALARACT (All Army Activities) 281/2012 dated 9 October 2012, subject: Temporary Early Retirement Authority (TERA) * Army Directive 2016-27 dated 23 June 2016, subject: Army Directive 2016-27 (TERA) FACTS: 1. Counsel states on behalf of the applicant: a. His firm is requesting on the behalf of their client to have: * expeditious Board hearing * find error in the discharge of their client from service, due to QMP was improper and revoke the discharge * reinstatement of service into the AGR program * back pay and allowances * if the above is not granted, voluntary retirement under the Temporary Early Retirement Authority b. Prior to the incident in 2013, their client’s career was nothing short of exemplary since joining the service in 1993. This was shown in his NCOERs, DA Form 1059s, and numerous awards, citations, and commendations. He was awarded the Combat Action Badge for direct engagement with the enemy while in Iraq in 2005. He was also awarded the Bronze Star for his deployment to Afghanistan in 2012. c. In 2012, he was reassigned to a unit in New York where he was tasked as the senior Active Guard and Reserve (AGR) NCO who was responsible for counseling all the AGR Soldiers and be a part of the rating chain of all training NCOs and other AGR battalion staff NCOs regardless of rank, section or assignment. He was also tasked to create a Special Conditioning Program for the full time staff who was unable to pass the Army Physical Fitness Test (APFT) or did not meet height/weight standards in accordance with Army Regulation (AR) 600-9 (The Army Body Composition Program). During this period, the applicant was injured and required therapy physical. These appointments conflicted with the physical fitness training. In his absence he tasked two sergeants first class to conduct the training and make sure that it was in compliance with the approved plan. d. In 2013, their client’s battalion commander initiated an AR 15-6 investigation regarding a Soldier being sent to school when not in compliance of AR 600-9. The investigation did not find their client culpable of any wrong doing. e. The NCOER for the period 28 July 2012 to 21 June 2013 made mention to the AR 600-9 noncompliance situation that was investigated and their client was cleared of wrong doing. There were other negative comments on the NCOER that their client would have questioned if he had known would have ended his military career. f. In April 2014 their client was notified of his pending (QMP) board, which he provided a letter to the president of the board that explained the extenuating circumstances that included medical documentation, memorandums and other evidence to refute his NCOER. The NCOER was the sole basis of the QMP. g. On 19 August 2014, their client’s battalion commander notified him that he was denied continued active duty service. In September 2014, their client filed appeals for the NCOER and the QMP to Human Resources Command (HRC) based on the substantive inaccuracies. In October 2014, their client’s QMP appeal was denied due to no material error. h. On 13 November 2014, their client filed another appeal to the ESRB regarding the NCOER and the results of the AR 15-6 investigation was supporting documentation. In January 2015, the ESRB notified their client that his appeal was granted in part as that the bullet on the NCOER regarding his attendance of NCO Educational System (NCOES). The QMP determination was that this bullet be removed and a correction to the NCOER be completed. i. On 20 January 2015, their client received orders separating him from active service with an effective date of 29 January 2015. He immediately contacted the battalion Judge Advocate General and the Inspector General at HRC to obtain an extension so he could complete a proper transition. He was able to get a 28 day extension. In February 2015, their client was denied another appeal of the QMP and was released from active duty and transitioned to a Troop Program Unit (TPU) Soldier and assigned back to the same unit he was just released from effective 2 March 2015. j. Their client was asked to be the interim command sergeant major by the battalion commander. Between March and June of 2015 he attended battle assemblies completing such duties as well as the same duties he was performing as an AGR Soldier. On 19 July 2015, he was notified that he was no longer on the unit manning report and when he inquired with retention, they told him that he should not have been assigned to the unit as a TPU Soldier. He was reassigned to the Retired Reserve effective 10 July 2015. Being that the order assigning their client to the unit as a TPU Soldier was revoked on 8 July 2015, he incurred a debt for the monies paid to him between March and July 2015. He is still paying off the debt for which he had sought out assistance from his congressman’s office but no relief was obtained. k. It is clear that without the improper NCOER, their client would not have been referred to the QMP and would not have been discharged from the active service. There was also an error and injustice that occurred with the ESRB decision of 18 December 2014 to partially amend the prior decision of 9 October 2014 that failed to result in a new QMP. They believe that the ESRB should have removed all the negative language and rating on the NCOER in its entirety, even the partial correction should have resulted in a new QMP since the NCOER was the sole reason for the board. l. While there would have been an additional cost to the Army, their client deserved reconsideration given that it affected his military career and his retirement, being he was within 2 years of reaching sanctuary. At the time of his discharge on 1 March 2015 he had 16.5 years of active federal service with only 3.5 to complete 20 years for a full pension immediately upon his retirement. m. They request that the Board review the evidence, overturn the decision to involuntarily separate the applicant, and reinstate him back to active duty in the AGR program. 2. A review of the applicant’s service records shows: a. He enlisted in the U.S. Army Reserve (USAR) on 3 August 1993. b. He served in Hungary from 14 June 1997 to 18 June 1997 and Bosnia from 18 June 1997 to 6 January 1998. c. On 27 January 2001, he was reassigned to the USAR Control Group (AGR). d. He reenlisted in the USAR and entered active duty in an AGR status on 23 January 2004. e. He served in Iraq from 10 June 2005 to 10 May 2006. f. He served in Afghanistan from 30 August 2011 to 21 May 2011. g. On his Change of Rater NCOER for the period of 28 July 2012 – 21 June 2013, the applicant received “Needs Improvement” in two areas: * Physical Fitness and Military Bearing – “Soldier failed to take a record APFT during the rating period in accordance with (IAW) AR 350-1 and was afforded multiple company scheduled opportunities to execute a record APFT” * Responsibility and Accountability – relieved of duties as the full time unit support (FTUS) physical training (PT) noncommission officer in charge (NCOIC) by the battalion (BN) commander due to the program’s instability and failing to meet the commander’s guidance * failed to administer proper oversight of rated AGRs; permitted a Soldier grossly out of standard to attend a NCOES, where Soldier was dismissed immediately h. On 28 July 2014, he received notification of denial of continued active duty service under the QMP from HRC. The notification stated that he QMP selection board conducted a comprehensive review of his record for potential denial of continued service under the QMP and recommended he be denied continued active duty service. As a result, the Director of Military Personnel Management approved the board's recommendation and he would be involuntarily discharged from the Army not later than 1 February 2015, with entitlement to separation pay if eligible for such pay, as provided by the Department of Defense Military Pay and Allowances Entitlements Manual. In lieu of separation, you may, if otherwise qualified: request an earlier separation date; however, or appeal the decision. i. On 26 August 2014, he acknowledged receipt of notification memorandum, Subject: Notification of Denial of Continued Active Duty Service under the Qualitative Management Program (QMP). He was presented with three options: separation on 1 February 2015; earlier separation; or appeal and request retention on active duty. He elected to appeal. j. On 4 September 2014, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). k. On 14 September 2014, he appealed the QMP’s denial of continued service. He contended that the NCOER was fundamentally flawed and should not be the basis for denial of continued service. His appeal was denied. l. On 27 January 2015, he submitted a DA Form 4187 (Personnel Action) where he indicated that as a result of his selection by the QMP, he requested to be released from active duty from active duty for the purpose of Non-Regular voluntary retirement at age 60, with a release date of 1 May 2015. He indicated that he was aware that he was not eligible to join the TPU (troop program unit) or IMA (individual mobilization augmentee) upon separation from the AGR Program (he had 20 letter dated 4 September 2014). He requested to be transferred to the Retired Reserves. m. The applicant’s request to be released from active duty (REFRAD) to request a non-regular retirement effective 1 May 2015 was disapproved due to being denied continued service under the QMP. His involuntary separation date was 1 February 2015. n. Orders C-01-590894, issued by HRC on 30 January 2015, ordered the applicant’s release from active duty and transfer to the U.S. Army Reserve Control Group (Reinforcement) o. He was honorably discharged from active duty on 1 March 2015 and reassigned to the 403 Civil Affairs Battalion under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 4 (Separation for Expiration of Service Obligation) [chapter 4 is in error, should have been chapter 19] by reason of non- retention on active duty due to QMP. His DD Form 214 shows that he completed 14 years, 1 month and 4 days of active service. It also shows he was awarded or authorized: * Afghanistan Campaign Medal with campaign star * Iraq Campaign Medal with 2 campaign stars * Bronze Star Medal * Meritorious Service Medal * Joint Service Commendation Medal * Army Commendation Medal (6th Award) * Army Achievement Medal (4th Award) * Joint Meritorious Unit Award * Meritorious Unit Commendation * National Defense Service Medal (2nd Award) * Armed Forces Expeditionary Medal * Global War on Terrorism Service Medal * Korea Defense Service Medal * Noncommissioned Officer Professional Development Ribbon (3rd Award) * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Armed Forces Reserve Medal with “M” device * NATO Medal (2nd award) * Combat Action Badge p. On 27 April 2015 and 6 July 2015, DD Form 215s corrected the following items: * Item 9 – add, USAR Control Group (Reinforcement) 1600 Spearhead Division Avenue, Fort Knox, KY 40122 * Item 13 – add Army Reserve Components Achievement Medal (2nd Award), Armed Forces Reserve Medal (2nd Award), Army Good Conduct Medal (4th Award), and Army Superior Unit Award * Item 18 – delete, block 9: 403 CA BN HHC (TACTI) (WRTDT0) 10XX East Mxxxxx Road, Maxxxxxx, NY 13211-1399 * Item 27 corrected his RE code from RE-3 to RE-4 q. On 10 July 2015, HRC published Orders C-07-510585 reassigning the applicant in the rank/grade of master sergeant/E-8 to the Retired Reserve, effective 20 July 2015. r. The applicant applied to the ESRB and on 9 October 2014, his application to alter or withdraw his evaluation report for the period of 28 July 2012 to 21 June 2013 was denied. s. The applicant applied to appeal the previous decision to the Enlisted Special Review Board and on 18 December 2014, his application to alter or withdraw his evaluation report for the period of 28 July 2012 to 21 June 2013 was partially approved. The determination was: * In Part IVf (Responsibility and Accountability), remove the second bullet comment “failed to administer proper oversight of rated AGRs; permitted a Soldier grossly out of standard to attend an NCOES where Soldier was dismissed immediately.” * Add “corrected copy” to the NCOER 3. By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. By regulation (AR 15-185), the ABCMR corrects Army records. A record correction may result in monetary entitlement (or debt). The ABCMR will furnish DFAS copies of decisions potentially affecting monetary entitlement or benefits. The DFAS will treat such decisions as claims for payment by or on behalf of the applicant. DFAS will settle claims on the basis of the corrected military record. The DFAS will compute the amount due, if any. The DFAS may require applicants to furnish additional information to establish their status as proper parties to the claim and to aid in deciding amounts due. 5. By regulation (635-200), a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. A Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the Soldier is in entry-level and service is uncharacterized. a. Chapter 4 (Expiration for Service Obligation), a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. The periods of military service required of all Army Soldiers will be in accordance with applicable laws. A Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable unless the Soldier is in entry-level status and service is uncharacterized. The Separation Code for Soldiers separating due to ETS (with no other disqualification) is MBK. b. Chapter 19 (Qualitative Management Program) this chapter contains policies and procedures for voluntary and involuntary separation, for the convenience of the government of RA NCOs and U.S Army Reserve (USAR) NCOs serving in AGR status, under the QMP. The service of the Soldier discharge under this chapter will be characterized as honorable. The Separation Code for Soldiers separating under the QMO is JGH. 6. By law, TERA is a discretionary authority and is not an entitlement. Eligible members who desire early retirement must apply for consideration, and approval is not assured. The approval authority for early retirement under the provisions of TERA is the CG, HRC. It is limited to Soldiers who are denied continued active duty service with an established involuntary separation date of 30 September 2018 or earlier who meet the following criteria: (a) NCOs denied continued service as a result of an approved Qualitative Service Program (QSP) centralized selection board who are serving on active Duty and have completed 15 but less than 20 years of active service as of the established involuntary separation date and (b) All Soldiers must meet all eligibility requirements for retirement for length of service for a 20-year retirement. Exceptions to other eligibility requirements will not be considered. In all cases, early retirement will not occur prior to attainment of 15 years of service on the established separation date. 7. Army Directive 2016-27 (TERA) states Soldiers who meet the following criteria may request TERA in lieu of involuntary separation, involuntary release from active duty or active service; enlisted members who were selected to be involuntarily separated as a result of a Qualitative Service Program; and enlisted members serving in the Active Guard and Reserve (AGR) Program who were selected to be involuntarily released from active duty or active service as a result of an AGR REFRAD Board or ASMB and who, on the date to be released from active duty or active service, have at least 15 years but less than 20 years of service for retirement under 10 U.S.C. § 3914, as computed under 10 U.S.C § 3925. Only individuals who meet the eligibility criteria are eligible for retirement pursuant to TERA. These criteria may not be waived. BOARD DISCUSSION: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s counsel contentions were carefully considered. The applicant received a negative NCOER that was reviewed by the QMP Board. He was subsequently notified he would be separated due to the QMP. He appealed the NCOER through the ESRB and received relief when the ESRB removed a portion of the comments. The NCOER was reviewed by the QMP Board a second time minus the comments; however, the QMP Board did not reverse their decision. The Board considered the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based upon the preponderance of evidence, the Board agreed the discharge was warranted, and as a result recommend denial of relief for reinstatement, and back pay. Public Law provides for TERA eligibility. The Board agreed he is not eligible for TERA and Public Law’s criteria is not waiverable. 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. 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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 4 (Separation for Expiration of Service Obligation), states a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. A Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the Soldier is in entry-level and service is uncharacterized. b. Paragraph 16-4 (Non-retention on active duty), states Soldier denied or ineligible for continued active duty service may be separated, declination of continued service. The service of Soldier separated under this paragraph will be characterized as honorable. c. Chapter 19 (Qualitative Management Program (QMP)), states noncommissioned officer whose performance, conduct, and/or potential for advancement do not meet Army standards as determined by the approved recommendations of HQDA centralized selection boards responsible for QMP screening, will be denied continued service. The QMP is not intended as a substitute, and does not relieve commanders of the responsibility for initiation of separation proceedings under other provisions of this regulation when required or appropriate. QMP selection criteria includes but are not limited to: (a) moral or ethical conduct incompatible with the values of the noncommissioned officer (NCO) corps and the Army ethic, (b) lack of potential to perform NCO duties in current grade, (c) decline inefficiency and performance over a continuing period, as reflected by Noncommissioned Officer Evaluation Report (NCOER) or failure of noncommissioned officer education system (NCOES) courses. d. Paragraph 19-12 (Involuntary Discharge), states Soldiers who choose not to appeal the QMP selection for denial of continued service, or whose appeal is denied, will be involuntarily discharged. Soldier who elect to appeal but fail, without compelling justification, to submit the appeal within the time prescribed in paragraph 19-11b, will also be involuntarily discharged. Such discharge will occur 90 days after the Soldier receives pre-separation counseling as required by law (10 USC 1142), which may be scheduled before a final determination of discharge has been made or as soon as possible after a final determination has been made. 3. Army Directive 2014-06 (Qualitative Management Program), directive revises Army policies for the QMP and is applicable to Soldiers in the Regular Army and USAR AGR. As provided in this directive, the QMP identifies NCOs whose performance, conduct or potential for advancement do not meet Army standards for continued service, as determined by the approved recommendations of a Headquarters, Department of the Army (HQDA) centralized selection board responsible for QMP selection. The specific changes to AR 635-200, chapter 19 which established policy for the QMP are: a. 19--5. (Implementation), the Commander, USA HRC implements the QMP. An HODA centralized selection board will consider NCOs for denial of continued service when: (a) USA HRC receives material from one of the following categories for permanent filing in the performance or restricted folder of the NCO's AMHRR (this material must be based on performance or conduct in the Soldier's current grade): (1) memorandum of reprimand from a general officer; (2) conviction by court-martial or punishment under Article 15, UCMJ; (3) Noncommissioned Officer Evaluation Report (NCOER) (DA Form 2166-8) based on a "Relief for Cause," pursuant to AR 623-3, paragraph 3-55; (4) annotation of "NO" in part IV, block a, on DA Form 2166-8; (5) rating from the senior rater of 4 (fair) or 5 (poor) for overall performance or potential in part V, blocks c or d, on DA Form 2166-8; (6) Service School Academic Evaluation Report (DA Form 1059) indicating Noncommissioned Officer Education System (NCOES) course failure; or (b) The DCS, G-1, or designee, approves a request from commanders with general court martial convening authority, or their designees, or the Commander, USA HRC, or designee, for referral of an NCO to a QMP screening board. (c) NCOs fail to qualify themselves for promotion consideration to the next grade because they have not completed the appropriate level of NCOES training as follows: (1) In the rank of SSG, upon attainment of 48 months time in grade without graduating from the Advanced Leaders Course; or (2) In the rank of SFC upon attainment of 48 months time in grade without graduating from the Senior Leaders Course. b. 19-6. (Selection procedures), selection for denial of continued service is the responsibility of boards convened by HQDA. QMP selection boards may be conducted in conjunction with HQDA boards convened for other purposes, such as selection boards for promotion. Board schedules and missions are announced electronically. (a) An NCO is subject to consideration by a QMP screening board when he or she meets one of the criteria in paragraph 19-5 and has been notified and afforded the opportunity to submit matters for board consideration, as discussed in paragraph 19-9. (b) The QMP board reviews the Soldier's AMHRR, the board version of the Soldier's Record Brief, and the Soldier's official photograph. If any documents in the restricted folder of the NCO's AMHRR formed the basis for referral to the QMP selection board, the QMP board will also consider those documents. The board will not consider portions of the NCO's restricted folder that are not relevant to a basis for referral. The foregoing material, along with mitigating matters the Soldier submitted to the president of the board, completes the file for board consideration. c. 19- 7. (Selection criteria), QMP selection criteria include, but are not limited to: (a) Moral or ethical conduct incompatible with the values of the NCO corps and the Army ethic. (b) Lack of potential to perform NCO duties in current grade. (c) Decline in the efficiency and performance over a continuing period, as indicated by an NCOER or failure of NCOES courses. (d) Recent or continuing disciplinary problems, as evidenced by conviction by court martial, nonjudicial punishment, or administrative reprimand. (e) Other discriminators such as imposition of a field commander's bar to reenlistment, inability to meet physical fitness standards, and failure to comply with requirements of the Army body composition program. d. 19-12. (Involuntary discharge), Soldiers selected for denial of continued service who do not elect to submit a request for voluntary retirement or voluntary discharge and who are not pending a decision on a QMP appeal will be involuntarily discharged. Involuntary separations will be effective the first day of the seventh calendar month following the date the QMP board results were approved. (a) Soldiers not requesting a discharge or voluntary retirement in lieu of separation through the QMP who file an appeal but are unsuccessful, will also be involuntarily discharged. Such discharges will occur no earlier than 90 days after the Soldier receives pre-separation counseling as required by law (10 USC 1142), which may be scheduled before a final determination of discharge is made or as soon as possible after a final determination is made. (b) The provisions of this regulation pertinent to counseling and rehabilitative transfer (see paragraph 1-16 ), notification of separation recommendation (see chapter 2, section I), and hearing before an administrative separation board (see chapter 2, section II) do not apply to involuntary discharge resulting from QMP selection. 4. AR 135-18 (The Active Guard Reserve (AGR) Program), currently in effect, prescribes the policy and procedures for the administration of the AGR program. It provided Army policy for the selection, utilization, and administration of the Army National Guard of the United States and USAR ordered to active duty for the purpose of organizing, administering, recruiting, instructing, or training the Army National Guard and Army Reserve. Selecting the best-qualified Soldiers to enter on active duty as participants in the AGR Program. Soldiers that may obtain an active Federal service retirement or may qualify for a non-regular retirement are not exempt from consideration. 5. AR 635-5-1 (Separation Program Designators), Table 2-3, in effect at the time, states: a. Separation code JGH is Involuntary discharges – administrative discharge-for non-retention on active duty under the provisions of AR 635-200, paragraph 19-12. b. Separation code MBK is voluntary release from active duty or transfer for completion of required active service under provisions of AR 635-200, chapter 4. 6. All Army Activities (ALARACT) 281/2012 (Temporary Early Retirement Authority (TERA)), states this is a discretionary authority and is not an entitlement. Retirement with at least 20 Years of service is the basic retirement entitlement for those who complete a career in the army. This is a very limited program the army elects to use as part of a Comprehensive force management strategy to shape the force. Army application of this authority, as approved by the Secretary of the Army, is limited to the specific eligibility criteria established below. Since TERA is not an entitlement, eligible members who desire early retirement must apply for consideration, and Approval is not assured. The approval authority for early retirement under the provisions of TERA is the commanding general of U.S. Army Human Resources Command. Application of TERA is limited to Soldiers who are denied continued active duty service with an established involuntary separation date of 30 September 2018 or earlier who meet the following criteria: (a) NCOs denied continued service as a result of an approved Qualitative service program (QSP) centralized selection board who are serving on active Duty and have completed 15 but less than 20 years of active service as of the established involuntary separation date and (b) All Soldiers must meet all eligibility requirements for retirement for length of service for a 20-year retirement. Exceptions to other eligibility requirements will not be considered. In all cases, early retirement will not occur prior to attainment of 15 years of service on the established separation date. 7. Army Directive 2016-27 (Temporary Early Retirement Authority (TEARA)), states Soldiers who meet the following criteria may request TERA in lieu of involuntary separation, involuntary release from active duty, or involuntary release from active service; enlisted members of the Army who were selected to be involuntarily separated as a result of a Qualitative Service Program and who, on the date they are to be discharged, have at least 15 years but less than 20 years of service, as computed under 10 U.S.C. § 3925; and enlisted members serving in the Active Guard and Reserve (AGR) Program who were selected to be involuntarily released from active duty or active service as a result of an AGR REFRAD Board or ASMB and who, on the date they are to be released from active duty or active service, have at least 15 years but less than 20 years of service for retirement under 10 U.S.C. § 3914, as computed under 10 U.S.C § 3925. Only individuals who meet the eligibility criteria are eligible for retirement pursuant to TERA. These criteria may not be waived. This directive is applicable as specifically stated and is not intended to extend retirement eligibility under TERA or sanctuary to other populations of Soldiers. This directive does not otherwise modify the ability of Soldiers to apply for retirement under existing law and policy. 8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170016026 15 1