MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 March 2002
         DOCKET NUMBER: AR2001057608

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

Mr. Carl W. S. Chun		Director
Ms. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Lester Echols		Member
Mr. Thomas Lanyl		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: Approval of his previous request to transfer to the Retired Reserve with award of Special Separation Pay (SSP).

APPLICANT STATES: That the US Army Reserve Command denied his SSP in error. The exception of warrant officers from this program was in error and not as intended by Subtitle B, Title XLIV, Public Law 102-484 (Fiscal Year 1993 National Defense Authorization Act). The category of company grade and field grade officers excluded general officers but not warrant officers. He states that many warrant officers received this SSP before him and many are having to repay the SSP. He states that the troublesome loophole would be easily resolved by simply including the applicability words of “warrant officers” through an amendment. He submits and refers to a case similar to his, specifically citing that it was possible that an application to the Army Board for Correction of Military Records could result in full consideration of the equities of the case.

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

The applicant was born on 19 December 1944 and he served on active duty as an enlisted man from 26 July 1967 to 25 August 1968 for Aviation helicopter pilot training. He was appointed as a Reserve warrant officer one on 26 August 1968, Aviation, with concurrent active duty as a helicopter pilot. He was promoted to chief warrant officer two (CW2) on 26 August 1969. He was separated from active duty on 15 January 1971 and transferred to the Reserve Control Group (Reinforcement), and he was honorably discharged on 25 July 1973 based on resignation. He was reappointed as a CW2 in the Reserve on 13 March 1979 and he was assigned to a Troop Program Unit as a helicopter pilot. He was promoted to CW3 on 4 September 1982 and to CW4 on 4 September 1989.

The applicant’s request is dated 5 May 2001 and he shows his present military status as Reserve.

The applicant’s unit, the 138^th Aviation Company, Florida was inactivated effective 15 April 1999. His request for transfer to the Retired Reserve with SSP was not approved.

He was then attached to the 345th Military Intelligence Battalion (MI Bn), Florida, with no aviator positions, as overstrength for 1 year unless he was sooner transferred to another unit with a position for his specialty (pilot). His second request for transfer to the Retired Reserve with SSP, submitted on
15 April 2000, was not approved. He was extended in this unit as overstrength.

Detachments of the 345^th MI Bn were activated to active duty in October, November, and December 2001. The applicant was not activated with his unit. He was involuntarily transferred to the Individual Ready Reserve effective
15 October 2001, with 27 years of qualifying years of service for retired pay. (He was previously issued a letter of notification of eligibility for retired pay at age 60 on 30 October 1996.)

He was transferred to the Retired Reserve effective 15 January 2002.

The National Defense Authorization Act for Fiscal Year 1993 (NDAA FY93), Public Law 102-484, Title XLIV, Subtitle B – Guard and Reserve Transition Initiatives, dated 23 October 1992 provides for, among other things, Selected Reserve transition assistance. The assistance was initially provided based on a large reduction in forces, effective 23 October 1992 through 30 September 1995, and has been extended through 2001. The assistance included separation pay, SSP, or early qualification for retired pay at age 60.

On 11 March 1993, the Deputy Assistant Secretary of Defense (Military Manpower and Personnel Policy) issued a memorandum providing the service secretaries implementing guidance for the Selected Reserve transition programs authorized in the NDAA. The guidance provided that the secretaries may designate the categories of personnel eligible for SSP.

On 8 July 1993, the Acting Assistant Secretary of the Army (Manpower and Reserve Affairs) (AASA(M&RA) issued a memorandum to the Deputy Chief of Staff for Personnel (DCSPER), the Director, Army National Guard Directorate (DARNG), and the Chief, Army Reserve (CAR), providing guidance for the implementation of the Selected Reserve transition assistance program. He specified that “To insure a balance of youth and experience in the SELRES [Selected Reserve], maintain promotion flow, and provide opportunities for officers separating from active duty or transferring from other billets to continue to serve as members of the SELRES, only those officers detailed in the categories below will be included for offers of involuntary separation benefits. a. Company and field grade officers who have completed 20 or more years of qualifying service for retirement at age 60, in all specialty skills, who meet all other criteria for consideration will be included for eligibility for special separation pay [SSP].”

The guidance did not note or explain the exception of warrant officers.

On 18 August 1993, by a priority message to all ARNG and Army Reserve units, the Office of the DCSPER provided implementation guidance concerning Selected Reserve transition assistance. All of the foregoing guidance was included except the guidance concerning those eligible for SSP. It addressed all soldiers and did not specify company and field grade officers only. It was specified that this message was coordinated with the offices of the ASA(M&RA), National Guard Bureau, and the OCAR.

On 28 January 1995, the ASA(M&RA) provided revised Selected Reserve Transition Benefits (SRTB) Program policy guidance to the DCSPER, DARNG, and the CAR. The guidance did not specify rank. It included that all eligible soldiers will receive five payments or until the year in which the soldiers reach their 60^th birthday, whichever occurs first; soldiers otherwise eligible for the SSP, involuntarily separated for reasons other than unit inactivation, deactivation or reorganization will receive one payment; and soldiers involuntarily separated and otherwise eligible for SSP will receive one payment.

On 28 May 1996, a memorandum from the DCSPER, United States Army Reserve Command (USARC), advised all units and organizations, in effect, that any selective Reserve member who will lose their paid drill position due to the inactivation/reorganization/relocation of their unit during the draw-down period may be eligible for the SRTB Program.

On 13 April 1999, the DCSPER, USARC, advised the USARC Major Subordinate Commands that while the SRTB Program is approved through September 2001, there is a congressional mandate requiring soldiers to be kept in drilling positions. He also advised that since the USAR is under-strength, the plan was to place every soldier in a position and not pay transition benefits.

On 6 December 1999, the Chief of Personnel Division, Office of the CAR, advised the USARC Commander that the request to place the SRTB Program in abeyance was not possible, and that so long as these actions continued to occur during the period specified by Congress, the SRTB Program remained valid.

On 30 October 2000, a Military Assistant, Office of the ASA(M&RA) requested a legal review of the SRTB concerning eligible categories, among other things. She stated that previous guidance specifically identified for eligibility only company and field grade officers and inadvertently excluded warrant officers.

On 10 January 2001, the Chief, Military Personnel Law Branch, Administrative Law Division, Office of The Judge Advocate General (OTJAG), opined, among other things, that the ASA(M&RA) specifically designated company and field grade officers, and not warrant officers eligible under the SRTB Program. It was stated that the Assistant Secretary of Defense guidance was that the Army may identify categories of Selected Reserve personnel that will be eligible for SSP, and that those categories must be specific by grade, length of service, and skill of the members authorized to be in such categories. It was further opined that many received the SSP erroneously, needing individual ratifications to forego collections.



On 8 March 2001, an official of the office of the ASA(M&RA) requested the DCSPER to provide an assessment of the warrant officer issue and a recommendation on “should SRTP be applied to Reserve Component warrant officers.”

On 26 October 2001, the Assistant DCSPER (Mobilization and Reserve Affairs) advised the ASA(M&RA) by memorandum of issues concerning the SRTB Program and that application of SSP to 1,222 warrant officers was caused by unclear policy guidance, and that the erroneous payments should be ratified to prevent collection. She also advised that there is now no need to include warrant officers for SSP since the Army National Guard and Reserve currently have a shortage of warrant officers.

There is no evidence of further guidance.

Army Regulation 600-20, Army Command Policy, indicates the grouping of officer grades into classes by pay grades as general officers, field grade officers, company grade officers, and warrant officers. It indicates the grouping of grades into classes, pay grades, titles of address, and abbreviations.

The SRTB Program was created in order to compensate soldiers of the Selected Reserve who were losing a paid drill position due to the drawdown of the Reserves. The effective dates of the program are 1 September 1991 to
31 December 2001. The priorities included assignment to any unit within commuting distance within authorized overstrength pending availability of a projected vacancy for a 1-year period. It was specified that generals were exempt from this program.

Entitlement to SSP included those members of the Selected Reserve who were involuntarily separated from the Selected Reserve, who qualified for non-regular retirement at age 60, but who were not yet age 60, and who voluntarily requested transfer to the Retired Reserve. Other specifications pertained to those offered positions in other units (those separated based on assignment as overstrength for a period of 1 year), subsequent qualification for retired pay at age 60, those already age 60, and those already qualified for pay or assistance under any other program. Those qualified for SSP would receive five annual payments or until the year in which they reach their 60^th birthday, whichever occurred first.

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

1. In view of the foregoing evidence, the Board concludes the applicant is not entitled to transfer to the Retired Reserve with award of SSP. He has not sufficiently shown error, injustice or inequity in his case.
2. The evidence clearly shows that warrant officers were not included in the SSP program. The ASA(M&RA) guidance was specific, and it did not include warrant officers. This is supported by previous legal opinion and investigation submitted in cases such as this, and the plain language used in the determination of those eligible for this program.

3. The applicant’s contentions have been noted; however, they do not sufficiently support his request. While other warrant officers may have erroneously received this pay, they and the applicant were clearly not entitled to the SSP. To provide the applicant the SSP he is requesting based on previous erroneous payment would cause further error.

4. 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 or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

5. 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

_fne___ __tl____ _le_____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001057608
SUFFIX
RECON
DATE BOARDED	20020328
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	128
2.	110
3.
4.
5.
6.