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ARMY | BCMR | CY1997 | 9711601
Original file (9711601.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, that his military records be corrected to show entitlement to a 15-year retirement (early retirement plan) or, as an alternative, that he requested and received a voluntary separation in support of the Army drawdown and entitlement to the voluntary separation incentive (VSI) in lieu of the fiscal year 1992 (FY92) reduction-in-force (RIF) selection for involuntary separation.
APPLICANT STATES : In effect, that when he learned he fell into the FY92 RIF category, he called Aviation Branch to see what his chances were of being affected by the RIF. At that time, they told him he was like most of the other majors in the category, he had a better than 50 - 50 chance of making it through the RIF but since he was in command at the time he should not have a problem. In a personal interview with an Aviation Branch representative in early 1992, he was told that his present position should help him through the RIF. However, in June 1992, he was selected for the RIF. He is submitting this application because a previous applicant to this Board, also chosen for the FY92 RIF, was allowed to stay on active duty so he could take advantage of the 15-year retirement. He was allowed this because he did not receive a call from his Branch stating he was in danger of being selected for the RIF, the same circumstances he is claiming.

 EVIDENCE OF RECORD : The applicant’s military records show:

He entered active duty as a second lieutenant on 28 January 1978. His specialty was 15A (General Aviation). He was promoted to Major on 1 November 1990.

He was notified of the pending FY92 RIF board and of his options concerning the voluntary separation incentive programs supporting the Army drawdown. The notification to all concerned by Department of the Army message on 3 January and 2 March 1992 indicated that majors in the RIF zone of consideration were encouraged to contact their branch manager for a risk assessment concerning the FY92 RIF consideration. He apparently was not previously notified by his branch manager that he was at risk for the RIF.

He apparently contacted his branch manager on two occasions, once telephonically and once in person, and was apparently told he had a better than 50-50 chance of making it through the RIF and that his present position (as a company commander) should help him through the RIF.

He did not apply for voluntary separation and the VSI or the SSB (special separation benefit) by the suspense date set for this purpose. He was selected for involuntary separation by the FY92 RIF board. As were all other majors selected by this RIF board, he should have been notified by letter dated 29 May 1992 of confirmation that he was selected for involuntary separation form active duty by the FY92 RIF board and that he must separate by 29 September 1992. He should have acknowledged the notification of his selection.

The RIF was authorized by Title 10, United States Code, as determined by the Army Secretary. RIF action was taken to reduce the force in order to meet the strength needs of the Army. Officers selected for the RIF were those officers not considered best qualified for retention on active duty. Those considered by the FY92 board were majors from the Army competitive category with a date of rank between 2 July 1989 and 1 March 1992, with less than 15 years of active service as of 30 September 1992, whose names were not on a promotion list, who were not eligible for retirement, who were not within 2 years of retirement eligibility, and who did not have approved separations in FY92. The number of officers selected for the RIF was dependent on the number of officers who requested voluntary separation under the provisions of the Army drawdown. RIF selection was final. There was no appeal process except application to this Board.

Army policy and the 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 SSB and the VSI are available to members who are retainable on active duty and prior to selection for an involuntary separation, but who voluntarily separate from active duty under the provisions of the voluntary separation incentive program in support of the Army drawdown.

Generally, to qualify for the SSB individuals must have served on active duty for more than 6 years prior to enactment of this law and must have served at least 5 years of continuous active duty preceding separation. Those who are in a Reserve component must be on the active duty list, must not be approved for payment of the VSI, and must meet such other requirements as the Secretary may prescribe, i.e., not in a shortage specialty and agreement to serve in the Ready Reserve for not less than 3 years in addition to any remaining statutory service obligation following separation from active duty. The SSB is a lump sum separation pay equal to 15 percent of the product of the years of active service and 12 times the monthly basic pay authorized at the time of separation.

Generally, to qualify for the VSI individuals must have been released from active duty for voluntary appointment, enlistment, or transfer to a Reserve component, for the period of time the member serves in a Reserve component, if they served on active duty for more than 6 but less than 20 years prior to enactment of this law, if they served at least 5 years of continuous active duty prior to the date of separation, if they are Reservists but on the active duty list, and if they meet such other requirements as the Secretary may prescribe, i.e., not in a shortage specialty. Individuals who qualify for the VSI may also qualify for the SSB. The VSI is an annual payment equal to 2.5 percent of the monthly basic pay received on the date appointed, enlisted, or transferred to the Reserve, multiplied by 12, and multiplied again by the member’s years of service. The annual payment will be made for a period equal to the number of years that is equal to twice the number of years of service of the member.

The full separation pay authorized to those officers who were involuntarily separated based on selection for the RIF was 10 percent of 12 times the amount of monthly basic pay to which entitled at the time of separation from active duty, times the active service time. Qualifications for this separation pay are also prescribed by the DODPM.

There was no 15-year length of service retirement program in existence at that time. The National Defense Authorization Act for Fiscal Year 1993 authorized temporary early retirement authority during the force reduction transition for officers on active duty.

The case cited as precedent has an important difference from the applicant’s case. That applicant applied to this Board while he was still on active duty. This meant that his career management information file (CMIF) maintained by his branch manager was still available. The interview sheet documenting the fact his branch manager told him he would be “okay” and that he was not advised that he was at risk for the RIF was available as substantiating evidence of “ineffective counseling.”

Since this applicant’s application is dated four years after the RIF, his CMIF is no longer available to provide such substantiating evidence. The applicant’s own recollection is that he was told he “had a better than 50 - 50 chance of making it through the RIF…shouldn’t (not “wouldn’t” ) have any problems” and “that his present position should (not “would”) help…”

In addition, this Board did not allow the applicant in the cited precedent to stay on active duty so that he could take advantage of the 15-year retirement. The 15-year retirement did not exist at that time. That applicant’s records were corrected to show he had requested and received approval for a voluntary separation, and so was entitled to the VSI, based upon a clear and substantiated claim of ineffective counseling. This Board does not know and the Deputy Chief of Staff for Personnel staff officer who gave the advisory opinion did not know how he came to be retired under the Temporary Early Retirement Program.

 DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2. In view of the circumstances in this case, the applicant is not entitled to correction of his records to show he requested and received a voluntary separation in support of the Army drawdown, or that he is entitled to either the VSI or the SSB. He is also not entitled to an early retirement plan in lieu of the RIF.

3. His contentions have been noted by this Board; however, they are not sufficiently supported by his application or the evidence of record. His case is not similar to the cited precedent in that the precedent was supported by evidence of record. It is noted that he was properly considered for the RIF and that he has not shown he was denied information or consideration or that he was misled concerning the RIF.

4. After having the same opportunity as all other officers to apply for a voluntary separation and the VSI/SSB prior to consideration for the RIF, and not having been misled concerning his risk for the RIF, he declined to do so of his own volition. He should not now be able to change his mind concerning voluntary separation and receive the higher monetary benefits given to others who made the tough decision to leave the Army at that time.

5. The actions by the Army in this case were proper and there is no doubt to be resolved in favor of the applicant.

6. In view of the foregoing, there is no basis for granting the applicant’s request.
DETERMINATION : The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

 BOARD VOTE :
GRANT

 GRANT FORMAL HEARING

 DENY APPLICATION




 Loren G. Harrell
                                    Director

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