2. The applicant requests that his discharge from the USAR be voided and that he instead be transferred to the Retired Reserve.
3. He states, in effect, that he received a notice on 26 May 1995 informing him that he had been twice nonselected for promotion in the USAR and that he had 90 days in which to request transfer to the Retired Reserve or he would be discharged. The memorandum was postmarked 4 January 1995 and indicated that failure to respond by 30 January 1995 would result in his being discharged effective 29 August 1994 (sic). He goes on to state that he received his honorable discharge dated 29 August 1994 (5 months before the notification). However, inasmuch as he separated from active duty under the Voluntary Separation Incentive (VSI) Program (VSIP), he is obligated to remain in the USAR in some capacity as a condition of receiving his annual VSI payments. He further states that he did not know he was even being considered for promotion much less that he was twice nonselected. However, had he known he was subject to discharge, he would have elected transfer to the Retired Reserve or the Ready Reserve to maintain the conditions of his agreement under the VSIP.
4. The applicant's military records show that he was honorably released from active duty on 21 August 1992 in the rank of captain under the provisions of Army Regulation 635-100 and the VSIP. He had served 11 years, 11 months, and 3 days of total active service and received his first of 23 annual VSI payments of $11,363.00.
5. The Army Reserve Personnel Center (ARPERCEN) sent the applicant an undated memorandum indicating that he was to be discharged no later than 29 August 1994 and that he had until 30 January 1995 to elect an option other than discharge. The memorandum was sent to the applicants Texas address listed on his separation documents. It appears however, that the applicant had moved to Germany and subsequently returned to a different address in Texas.
6. On 14 February 1995 the ARPERCEN published orders discharging the applicant from the USAR effective 29 August 1994. The applicant submitted his request to this Board on 18 June 1995.
7. To assist in the drawdown of the Army, the VSIP was established to provide incentives to soldiers to voluntarily separate from active duty and accept an appointment or enlistment in, or transfer to, the Ready Reserve or a reserve component. It also provided that in the event the soldier became ineligible to continue to serve in the USAR due to failure of selection for promotion or other reasons determined to be not the fault of the soldier, that the soldier would be transferred to the Standby Reserve or Retired Reserve and continue to receive annual VSI payments for the remaining period authorized. Both separation incentive options, the VSI and the SSB, were offered jointly. Service members who were approved for the VSIP had the option of receiving either the VSI or the SSB.
8. Those who chose the SSB received a lump sum payment equal to 15 percent of his/her annual basic pay multiplied by his/her number of years of active military service. In return, they had to agree to serve in the Ready Reserve for a period of not less than 3 years after completion of any remaining service obligation. (Note: If involuntary separation pay was received, an offset of the SSB payment had to be made.)
9. Those choosing the VSI were to receive an annual payment equal to 2.5 percent of his/her annual basic pay, multiplied by the number of years of active Federal service. The member had to agree to serve in the Ready Reserve for the entire period that he/she received annual payments. (NOTE: If involuntary separation pay was received, an offset had to be made against future payments until the amount received was recouped.)
10. Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail and transfer of Army Reserve soldiers. Chapter 7 of the regulation relates to the removal of soldiers from active status and states, in pertinent part, that soldiers removed from active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.
CONCLUSIONS:
1. Although it is a requirement for USAR soldiers to request transfer to the Retired Reserve or another USAR Control Group in lieu of being discharged, the applicant was released from active duty under the VSIP with entitlement to annual VSI payments. A condition of separation for personnel in this category who are no longer eligible to continue in the Ready Reserve was that they be transferred to the Standby or Retired Reserve in order to maintain their eligibility to receive their annual VSI payments. Therefore, the applicant's honorable discharge from the USAR was not accomplished in accordance with law and regulations applicable at the time and therefore should be revoked.
2. Notwithstanding the aforementioned conclusion, it is reasonable to presume that had the applicant received the option letter in sufficient time to respond, he would have elected to be transferred to the Retired Reserve in order to avoid losing his VSI entitlements.
3. The foregoing conclusion is supported by the fact that he submitted his application to this Board only 4 months after his discharge orders were published.
4. In view of the foregoing and since the applicant meets the eligibility requirements for assignment to the Retired Reserve, it would be equitable and just to correct his military records by voiding his discharge of 29 August 1994 and assigning him to the Retired Reserve effective the same day.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected:
a. by voiding the 29 August 1994 discharge from the Army Reserve of the individual concerned; and
b. by showing that he was transferred to the Retired Reserve effective 29 August 1994.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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