ABCMR Proceedings (cont)                                                        AR2002079072

PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE: 1 July 2003
	DOCKET NUMBER:  AR2002079072

	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
| Ms. Joyce A. Wright | | Analyst

  The following members, a quorum, were present:

| Mr. Ted S. Kanamine | | Chairperson
| Ms. Karen Y. Fletcher | | Member
| Mr. Melvin H. Meyer | | 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 reconsideration of his earlier appeal to have his discharge voided and that he be transferred to the Retired Reserve with entitlement to prior and future Voluntary Separation Incentive (VSI) payments.

3.  The applicant states that he never received notification of being nonselected for promotion.  However, if he had received an "Option Letter" from the Army Reserve Personnel Command (AR-PERSCOM) after his nonselection, he would have elected to transfer to the Retired Reserve, for continued receipt of VSI.  In support of his application, he submits copies of his:  two time nonselection letter dated 9 May 2000; Final Judgement of Dissolution of Marriage, dated 25 May 2000; separation orders; and a sworn statement from his former wife. 

4.  In support of his application, he submits an additional statement.  He states that he never received the option letter.  At that time, he was going through a divorce and his ex-wife was forwarding his mail.  His two-time nonselection letter which he recently obtained, makes no reference to the "Option Letter."  He has acquired a copy of his separation orders that were not available in his previous case.  His address was officially changed with AR-PERSCOM, after the sale of his home.  It was changed to his employment address where he has been self-employed and has been his permanent resident address since that time.  He was not notified that he had been discharged on 16 July 2000 when he changed his legal residence.  He did not receive his annual VSI payment on 28 September 2000. 

5.  He goes on to state that his ABCMR Memorandum of Consideration (MOC), dated 11 Jul 2002, Discussion paragraph 4; made reference to "laches."  Laches has been defined as the neglect, for a reasonable and unexplained length of time, under circumstances permitting diligence, to do what should have been done.  Delay alone is insufficient to establish "laches;" only delay resulting in a disadvantage to the other party justifies application of the equitable doctrine of "laches."  An individual seeking to invoke the equitable doctrine of laches must establish that "a party with knowledge of the facts giving rise to his right delays assertion of them or an excessive time and the other party suffers legal detriment therefrom."  In considering the doctrine of "laches", the court should consider the equities and the conduct of both parties.

6.  He is unable to distinguish how the US Army or Government suffered any legal detriment.  If AR-PERSCOM needed to contact him at anytime either before, during, or after his divorce they could have called.  This error in communication has only served to harm his family.  He would never do anything to jeopardize his future VSI benefits.  His loss of VSI seriously affected his family.  Without his VSI, his financial ability to provide for his family is seriously compromised.  He concludes by requesting that his discharge be voided and that he be transferred to the Retired Reserve for the purpose of drawing his annual VSI benefits.

7.  The MOC of the Board’s prior review of the case dated 11 July 2002 (AR20010637401) is incorporated herein by reference as if wholly set forth.

8.  The applicant’s contentions are new arguments that require Board consideration.

9.  The Board originally concluded that the applicant was advised that he must remain a member of the Ready Reserve to continue to receive VSI payments.  While he was eligible for transfer to the Retired Reserve, he was required to be discharged for failure to be promoted to lieutenant colonel if he did not request an alternate form of removal from an active status.  He did not make any such request and was discharged.  The Board also concluded that it was regrettable that he lost his VSI payments but that was due to his failure to maintain contact with the appropriate commands in compliance with lawful regulations.  

10.  The applicant's military records show he was commissioned as a second lieutenant in the USAR on 12 July 1978, with prior military service.  He was ordered to active duty (AD) on 21 July 1980.  He was promoted to captain (CPT/0-3) effective 1 September 1983.  He was honorably released from AD on 30 September 1992, under the provisions of Army Regulation 635-100, chapter 3, miscellaneous reasons.  He had a total of 12 years, 2 months, and 10 days of creditable service.  Item 18 (Remarks) of his DD Form 214 states he would be paid VSI in the amount of $16,833.63 for 24 years. He was transferred to the USAR Control Group (Reinforcement) Individual Ready Reserve (IRR) in the pay grade of 0-3.

11.  He was promoted to major (MAJ/0-4) effective 9 April 1993.
12.  The applicant was considered but not selected for promotion to lieutenant colonel by the 1998 and 1999 Reserve Components Selection Boards (RCSB’s). 

13.  The applicant was honorably discharged from the USAR on 25 May 2000, under the provisions of Army Regulation 135-175.  There is no evidence of record that the applicant was provided the opportunity to request transfer to the Retired Reserve.

14.  The applicant provided a copy of his Final Judgment of Dissolution of Marriage, dated 25 May 2000, which finalized his divorce.

15.  The applicant also provided a copy of a sworn statement, dated 6 August 2002, by his ex-spouse.  She indicated that after her separation from the applicant in December 1999, she was responsible for forwarding the applicant's mail to his new address.  She states that she only forwarded bills to her former husband and discarded all other correspondence.

16.  Department of Defense (DOD) Financial Management Regulation, Volume 7A, Chapter 35, paragraph 350801, subparagraph F, states:  "The member must accept voluntary appointment…to the Ready Reserve of a Reserve Component and must continue to serve in a Reserve Component during the entire period of eligibility for VSI.  If the member does not continue to serve in the Ready Reserve, the VSI installments terminate on the date of separation from the Reserve Component or transfer to the Retired Reserve."  Exceptions are provided for 2-time non-selection for promotion, medical disability, age, or other
involuntary reasons.

17.  Army policy and the Department of Defense Military Pay and Allowances Entitlements Manual (DODPM), based on Public Law 102-190, dated 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.  The voluntary incentive program was designed to support the Army's drawdown.  HQDA message 281802Z 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.  VSI annual payments will 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.

18.  Army Regulation 135-133 (Ready Reserve Screening, Qualification Records Systems, and Change of Address Reports), paragraph 4-3, states that each soldier must furnish a permanent home address (home of record).  When away from that permanent address for more than a month, the solider will provide a temporary address.  USAR personnel on appointment, enlistment, reenlistment after break in service, or on transfer to the USAR may report their address change by use of any official form.  A letter to the unit commander or the Commander, AR-PERSCOM, as appropriate, will satisfy this requirement. 

19.  Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.
Paragraph 7-4 requires removal of officers who are twice not selected for promotion to chief warrant officer three, chief warrant officer four, captain, major,
or lieutenant colonel.  

20.  Army Regulation 135-175 provides policy, criteria, and procedures governing the separation of officers of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR), except for officers serving on active duty or active duty training exceeding 90 days.  Paragraph 4-4 pertains to the removal from an active status.  It states, in pertinent part, that officers in the grade of first lieutenant, captain, or major, who completed their statutory military obligation, will be discharged for failure to be selected for promotion after second consideration by a DA Reserve Components Selection Board.

21.  Title 10, United States Code (USC), section 14506, states that an officer in the grade of major who twice fails to be selected for promotion to lieutenant colonel will be separated no later than the first day of the month after the month in which the officer completes 20 years of commissioned service.

22.  Title 10, USC, section 14513, states that a Reserve officer of the Army, who is in an active status and whose removal from an active status or from a Reserve active-status list is required by section 14506 of this title shall:  1) be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officer’s armed force; 2) be transferred to the Retired Reserve, if the officer is qualified and applies for such transfer; or 3) if the officer is not transferred to an inactive status or the Retired Reserve, be discharged from the officer’s Reserve appointment.  

23.  Effective 1 July 2002, Title 10, section 14513 was amended to allow for the automatic transfer to the Retired Reserve of Reserve Component officers whose removal from an active status was required for failure of selection for promotion. Only in those cases where the officer requests not to be transferred to the Retired Reserve will the officer be discharged.

CONCLUSIONS:

1.  The applicant was separated from active duty on 30 September 1992, under the VSI program and was to receive $16, 833.63 a year for 24 years.  A condition of receiving the VSI payments was to remain in the Ready Reserve.

2.  The applicant was transferred to the IRR as a CPT/0-3 and was later promoted to major.  He was properly considered for promotion by the 1998 and 1999 RCSB’s.  The Board also notes that he was not selected for promotion and that he was subsequently removed from the Ready Reserve based on his nonselections.  He was honorably discharged on 25 May 2000.

3.  The Board notes that the applicant stated that he never received notification of being nonselected and that had he never received an "Option Letter" from    AR-PERSCOM after his second nonselection.  If he had he would have elected transfer to the Retired Reserve, for continued receipt of VSI.  It was also noted that his ex-spouse was forwarding his mail, but only bills, and discarded all other mail.  

4.  It appears that the applicant failed to maintain a valid address as required by regulation.  His address was officially changed with AR-PERSCOM after the sale of his home.  It was further noted that he changed his legal residence on 16 July 2000 and was not informed that he had been discharged.

5.  The Board notes that the applicant's made reference to "laches" that was discussed in his previous case in the Discussion paragraph 4.  The Board has thoroughly reviewed his definition and comments pertaining to "laches" and has considered the equities and conduct of both parties.  

6.  The Board takes note of all matters presented in extenuation and mitigation of the applicant's situation and believes that it would now be appropriate, as a matter of fairness and equity, to revoke his honorable discharge; to transfer him to the Retired Reserve effective 25 May 2000; resume his VSI payments, and retroactively pay any annual VSI payments which were lost as a result of his separation. 

7.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error or rectify an injustice.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected for the individual concerned: 

	a.  by declaring the applicant's 25 May 2000, honorable discharge null and void;

b.  by reissuing orders showing that he was transferred to the Retired Reserve effective 25 May 2000; 

	c.  by restoring his entitlement to annual VSI payments; and

	d.  by retroactive payment of any lost VSI payments, which resulted from the separation action.

BOARD VOTE:

__tk___  __kf___  __mm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Ted S. Kanamine__
		        CHAIRPERSON

INDEX

CASE ID | AR2002079072
SUFFIX |
RECON |
DATE BOARDED | 20030701
TYPE OF DISCHARGE | Honorable
DATE OF DISCHARGE | 20000525
DISCHARGE AUTHORITY | AR 140-10
DISCHARGE REASON |
BOARD DECISION |
REVIEW AUTHORITY |
ISSUES         1. | 1023
2. |
3. |
4. |
5. |
6. |