PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            5 March 2002
	DOCKET NUMBER:   AR2001064180

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Mr. Donald P. Hupman, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his 20 September 2000 discharge from the United States Army Reserve (USAR) be voided, that his payments under the Voluntary Separation Incentive Program (VSIP) be continued and that he be paid all back payments that he should have received had he not been discharged.  

3.  The applicant states, in effect, that he received a notification from the Army Reserve Personnel Command (ARPERSCOM) asking him if he would like to change his status.  Inasmuch as he had contracted Crohn’s Disease and was no longer deployable, he contacted officials at the ARPERSCOM and inquired as to whether or not it would impact his Voluntary Separation Incentive (VSI) payments and was informed that it would not.  Accordingly, because he had not been actively participating in the USAR, he submitted his resignation based on the information he had been provided.  However, in September 2001, after not having received his annual VSI payment in August, he contacted officials at the Defense Finance and Accounting Service (DFAS) and was informed that because he had changed his status, he was no longer eligible to receive VSI payments.  He further states that he was informed by personnel at the ARPERSCOM that his only option was to apply to the Board.  He continues by stating that no reasonable person would take such an action to stop receipt of payments when he had not actively participated previously and had he not been informed that such an action would have no effect, he never would have taken the advice he was given at the time. 

4.  The applicant’s military records show that he was honorably released from active duty in the rank of captain on 30 August 1992, under the Early Release Program – VSI.  He had served 14 years of active service and was authorized VSI payments of $13,824.42 for a period of 28 years.  He was transferred to the USAR Control Group (Reinforcement) and remained assigned to that control group until he was honorably discharged on 20 September 2000, due to voluntary resignation. 

5.  A copy of the applicant’s orders discharging him from the USAR are not present in the available records.  However, a staff member contacted officials at the ARPERSCOM, who indicated that the applicant was discharged from the USAR on 20 September 2000, due to voluntary resignation. 

6.  The evidence of record shows that the applicant immediately solicited the assistance of his member of Congress in order to have the issue resolved.  His member of Congress was advised by officials at the ARPERSCOM that the applicant’s only recourse was to apply to the Board.

7.  Army policy and Department of Defense Military Pay and Allowances Entitlements Manual (DoDPM), based on Public Law 102-190, 5 December 1991, as amended, prescribes the qualifications for entitlement to readjustment benefits for certain voluntarily separated members.  The VSI was one of the monetary benefits associated with this incentive program.  

8.  The Voluntary Incentive Program was designed to support the Army’s drawdown.  Headquarters, Department of the Army (DA) Message 281802Z, dated in January 1992, clarified issues associated with the voluntary separation incentive program via a question and answer format.  It stated, that soldiers approved for VSI would be paid in annual installments commencing on their departure date from active duty, and on each anniversary date thereafter for twice the number of years on active duty, provided the soldier continues to serve in the Ready Reserve.  It also stipulated that VSI annual payments would be discontinued if the member is separated from the Ready Reserve unless the individual becomes ineligible to continue to serve due to medical or age limitations in which case the soldier will be transferred to the Standby Reserve or the Retired Reserve.  

CONCLUSIONS:

1.  Although officials at the ARPERSCOM indicate that the applicant submitted a resignation, the applicant contends that he did so based on the advice he received from those officials at the time.  

2.  Notwithstanding the ARPERSCOM contention that the applicant resigned, there is no evidence to suggest that the applicant was advised that he would lose VSI payments in conjunction with his being discharged from the USAR.  It also appears that he attempted to resolve the situation as soon as he became aware that the advice he had received was incorrect. 

3.  His record confirms that he served honorably on active duty for 14 years and that he was entitled to the VSI payments for 28 years, upon his separation from active duty in 1992.  The Board finds that it is unreasonable to believe that he or any other individual would voluntarily accept a discharge from the USAR, knowing that such an action would suspend his annual VSI payments.

4.  In the opinion of the Board, it would be unjust to hold the applicant to a decision he may have made, which ultimately affected his eligibility to continue to receive his VSI payments, knowing that he likely made that decision without full knowledge of the consequences.

5.  The Board concludes, in view of the circumstances, and in the interest of justice, that his resignation and 20 September 2000 discharge from the USAR should be voided, that he be restored to the USAR status he held prior to his discharge, and that his VSI payments be resumed. 
6.  In addition, the Board finds that it would be appropriate to provide the applicant any annual VSI payments, which were lost as a result of his discharge from the USAR, retroactively.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:  That all of the Department of the Army records related to this case be corrected by voiding the resignation and 20 September 2000 discharge from the USAR pertaining to the individual concerned, that he be restored to his former USAR status with entitlement to annual VSI payments and that he be paid all VSI payments that he missed as a result of his discharge.

BOARD VOTE:  

__fe ____  __tbr____  __dh____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Fred N. Eichorn_____
		        CHAIRPERSON

INDEX

CASE ID	AR2001064180	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/03/05	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2000/09/20	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON	RESIGNATION	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  732	144.8000/A80.00	
2.  192	110.0300/REINSTATE	
3.  291	128.0800/VSI	
4.		
5.		
6.