ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 December 2019 DOCKET NUMBER: AR20180008143 APPLICANT REQUESTS: that the Board grant the applicant a 15 year letter for retirement. He also requests back pay due to him based on his 15 year retirement effective date 2 September 1997. The applicant requests an appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Temporary Early Retirement Authority (TERA) information 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. Through his attorney, the applicant states, in effect, that he requests that he be granted a 15 year retirement with the TERA in effect at the time of his discharge in 1997. He also requests back pay due to him based on his 15 year retirement effective date2 September 1997. Congress approved TERA authorizing members with over 15 years, but less than 20 years of total active duty service to apply for early retirement. He could not find eligibility requirements for TERA during the relevant time frame. They request the Board to determine eligibility, produce documents and assess his 15 year retirement under TERA. 3. The applicant provided a copy of the TERA that states TERA authorized members with over 15, but less than 20 years of total active duty service to apply for early retirement. The opportunity to retire under the TERA program ended in September 2002. TERA retired pay is initially computed using the length of service retirement formula. 4. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army (RA) on 9 August 1982. b. Orders 155-27, dated 4 June 1985, discharges the applicant from the RA effective 13 June 1985. c. He enlisted in the RA on 19 June 1989, 3 November 1992, and 8 July 1997. d. Orders 177-0276, dated 26 June 1997, discharges the applicant from the RA effective 19 August 1997. f. He was discharged from active duty on 2 September 1997 with an honorable character of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he completed 15 years, and 24 days of active duty service. 5. ALARACT 281/2012 (Temporary Early Retirement Authority) allows the Army to offer early retirement to service members who have completed at least 15 years of active service. 6. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 7. AR 37-104-4 (Military Pay and Allowance Policy) paragraph 20-1 settlement actions authority, states that only the director, DFAS (Defense Finance)-IN may make settlement actions affecting the military pay accounts of Soldiers as a result of correction of records by the ABCMR per provisions of AR 15-185. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Based upon a lack of evidence to show that the applicant applied for an early retirement and was denied, the Board concluded that there was insufficient evidence of an error or injustice. The Board found that for any type of retirement a Soldier must apply and be approved; however, the Board found insufficient evidence to show the applicant applied for early retirement at any time prior to his separation. 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. X 3/11/2020 CHAIRPERSON Signed by 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. ALARACT 281/2012 (Temporary Early Retirement Authority) allows the Army to offer early retirement to service members who have completed at least 15 years of active service. 3. The FY 2012 National Defense Authorization Act (NDAA), Public Law 112-81, enacted 31 December 2011, authorized the military services to offer early retirement to Service members who have completed at least 15 years of active service. This is a discretionary authority and not an entitlement. The Army has elected to use this limited program as part of a comprehensive force management strategy to shape the force. It does not apply to Service members of the Army National Guard or the U.S. Army Reserve. 4. AR 15-185 (ABCMR) states that ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 5. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). 6. AR 37-104-4 (Military Pay and Allowance Policy) paragraph 20-1 settlement actions authority, states that only the director, DFAS (Defense Finance)-IN may make settlement actions affecting the military pay accounts of Soldiers as a result of correction of records by the ABCMR per provisions of AR 15-185. NOTHING FOLLOWS