IN THE CASE OF: BOARD DATE: 18 August 2023 DOCKET NUMBER: AR20220010276 APPLICANT REQUESTS: correction of his military service record to reflect retirement vice discharge with applicable back pay and retired benefits. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 22 December 1995 * DA Form 2-1 (Personnel Qualification Record) * Personal Letter * Congressional Privacy Release, Senator C- V- H- * Medical Records FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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, in pertinent part: a. Throughout his long career he achieved many awards and accolades, such as the award of the Army Commendation Medal and was placed on the promotion list to the rank of staff sergeant (SSG). b. In December of 1995 he was forced to separate from service early due to diminishing mental health and the Army "downsizing" all SSG and above who were over 10 years of service were automatically receiving involuntary separation. For these situations, the Soldiers were given the option to take separation pay with 5 years in the U.S. Army Reserve (USAR) or National Guard. Decline the separation pay with obligated USAR or National Guard service, or for any Soldier who served 15 years of active service or more the option of early retirement. At the time of separation, he was not given the option for retirement even though he served more than 15 years of active service. Only those who held specific Military Occupational Specialty (MOS) were afforded the retirement option, to which he believes to be an unfair and discriminatory practice. c. Additionally, his MOS was filled for the rank of SSG and therefore he was unable to remain on active duty or to be promoted from the rank of Sergeant (SGT) to SSG before separating. d. He accepted the option for separation pay and received $29,548.80 and was told that he would finish his last 5 years of service with the USAR and be eligible to apply for retirement benefits and compensation at the completion of those 20 years and upon turning age 61. However, he would not receive any retirement funds or benefits until the separation pay was paid back in full. e. After separating from service, he continued to serve his country in other ways as he was assigned duty at the Baltimore/Washington International Airport providing security during the 9/11 attack. The lack of retirement benefits and ability to serve his full term of 20 years active duty have caused severe detriment to his mental health and has caused him to lose his family and friends. The circumstances presented show his commitment to service and establish his request for waiver from honorable discharge to honorable retirement. 3. A review of the applicant's available service record reflects the following: a. On 3 December 1980, he enlisted in the Regular Army and continued service through reenlistments. b. On 29 May 1987, the Department of the Army, 177th Personnel Service Center issued Orders Number 126-48 promoting him to the rank of sergeant (SGT)/E-5. c. On 29 September 1995, Headquarters, Fort Carson and Headquarters, 4th Infantry Division (Mechanized) issued Orders Number 272-0034 reassigning him to the U.S. Army transition point for transition processing and discharge from active duty, effective 22 December 1995. Additional instructions (1) Soldier is not entitled to separation pay in accordance with (IAW) 10 United States Code (USC), section 1174. d. On 24 October 1995, Headquarters, Fort Carson and Headquarters, 4th Infantry Division (Mechanized) issued Orders Number 297-0001 amending Orders Number 272- 0034 to state "Soldier is entitled to full separation pay in accordance with Title 10, USC, section 1174." e. DD Form 214, ending 22 December 1995 reflects an honorable discharge for completion of required active service under the provisions of Army Regulation (AR) 635- 200 (Personnel Separations Enlisted Personnel) chapter 4. He was transferred to the Headquarters and Headquarters Company, 338th Military Intelligence Battalion. (1) Item 12 (Record of Service) shows service from 3 December 1980 to 22 December 1995 with a net active service this period of 15 years, 0 months, and 20 days. (2) Item 18 (Remarks) shows "Separation Pay 29,548.80//Member has completed first full term of service//Member is entitled to full involuntary separation pay//." f. On 2 December 1997, the U.S. Army Reserve (USAR) Personnel Center issued Orders Number D-12-789775 honorably discharging him from the USAR. 4. The applicant provides the following: a. Congressional Privacy Release to the office of Senator C- V- H-, authorizing him to communicate with the Army Review Boards Agency on his behalf. b. Medical Records as supporting evidence to his request. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's contentions, the military record, and regulatory guidance. Evidence of record shows that the applicant was discharged based on completion of required active service at the grade of Staff Sergeant. He served fifteen years and, in accordance with applicable regulatory guidance is ineligible for retirement. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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. Title 10, USC, 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 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. 2. AR 635-200 (Personnel Separations 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. The periods of military service required of all Soldiers of the Army will be in accordance with applicable laws. b. Section 12-7 (Eligibility) states Soldiers who have completed 20 but less than 30 years of active federal service and who have completed all required service obligations are eligible, but not entitled, to retire upon request. Except as indicated in chapter 16 of this regulation, unless restricted in this section, Soldiers who have completed 19 or more years of active federal service may apply for retirement. The request must be made within 12 months of the requested retirement date except as indicated in chapter 16. Soldiers must complete at least 20 years of active federal service and all service obligations (see paragraph 12 – 8) by the requested retirement date. (See para 12 – 12 concerning applying for retirement.). 3. AR 601-280 (Army Retention Program) in effect at the time states in table 3-1 (Retention Control Points) sergeant/E-5 is authorized a maximum of 13 years total active service and SGT promotable is authorized a maximum of 15 years total active service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010276 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1