MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 December 2001
         DOCKET NUMBER: AR2001058334

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Ronald E. Blakely		Member
Mr. Thomas E. O’Shaughnessy, Jr.		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: In effect, that his retirement be voided and that he be reinstated to active duty in the Active Guard/Reserve (AGR) Program.

APPLICANT STATES: In effect, that he was unjustly denied the opportunity to withdraw his request for retirement under the Voluntary Early Retirement Program (VERP) and was forced to retire against his wishes. He goes on to state that at the time he submitted his application, the guidance provided that applications could only be withdrawn after approval, for unforeseen medical reasons and this was at a time when everyone affected had been notified that a Release from Active Duty (REFRAD) Board would be conducted that would involuntarily REFRAD officers selected. However, the REFRAD Board was not conducted as announced. At the time he requested withdrawal of his application, his wife was experiencing medical problems and he felt it best that he remain on active duty because he could not afford medical insurance and he needed to remain where he was because the physician she needed was at their location. He further states that he submitted his request for withdrawal prior to his retirement request being approved and his request was arbitrarily disapproved, which was a patent violation of the published guidance. He also states that the entire program was improperly handled, that it unfairly discriminated against officers in the ranks of major through colonel with 15 to 18 years of service, and that the program was not applied consistently across the board. In support of his application he submits an extensive packet of documents outlining the events that occurred in his case.

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

On 20 November 1995, the Office of the Chief of Army Reserve (OCAR) dispatched a memorandum for AGR officers informing them that the Chief, Army Reserve (CAR), would convene an involuntary release from active duty board (AGR REFRAD Board) to obtain force reshaping goals not achieved under the VERP. The zone of consideration was major through colonel with 15 to 18 years of Active Federal Service (AFS), less Chaplains and Staff Judge Advocate officers.

On the same date, a message was dispatched from the Director, Full-time Support Management Center (FTSMC) in St. Louis, Missouri, which announced an additional VERP application window that applied to personnel being considered by the AGR REFRAD Board and that was open for the period of 10 November 1995 to 5 January 1996. The message announced that applications would be processed on a first come, first serve basis and that windows would close as target numbers were reached by grade and specialty.

On 13 December 1995, the CAR dispatched a memorandum to all AGR officers, wherein he explained the challenges he faced in correctly shaping the AGR force for the 21^st Century. He also explained that he was asked by the Secretary of the Army (SA) to hold an AGR REFRAD Board because the numerous voluntary transition programs offered fell short of the realignment goals of reducing the overall number of field grade officers. He went on to explain that he had targeted only officers who were eligible for early retirement and hoped that enough officers would voluntarily retire before he was forced to implement involuntary separation actions in January 1996.

On 5 January 1996, while serving as an AGR inspector general (IG) in the rank of lieutenant colonel (LTC) at Fort Benjamin Harrison, Indiana, the applicant submitted his request for early retirement under the VERP, effective 1 September 1996. He indicated that he understood that his application, once approved, could not be withdrawn, except in the case of unforeseen medical hardship or acceptance of promotion. His request was approved by the CAR and a notification of the approval was dispatched by the FTSMC on 24 January 1996.

Meanwhile, it appears, based on the documents submitted by the applicant, that he submitted a request to withdraw his application for retirement on 9 January 1996. He cited as the basis for his request, the uniqueness of his wife’s disease, the quality of life that she would have if he were retained in the AGR Program, and the increased medical costs associated with retirement. In support of his application he submitted a letter from his wife’s attending physician, which indicated that it was imperative that his wife have follow-up care for the rest of her life by someone experienced in such a rare disorder.

The attending physician also provided a follow-up letter on 29 January 1996, in which he indicated that he first saw the applicant’s wife on 7 February 1994, that she underwent surgery on 5 May 1994 to remove a benign adrenal tumor, and that she needed careful follow-up by an individual familiar with such a rare disorder.

The applicant sent an additional follow-up letter on 9 January 1996 to the FTSMC containing additional comments to be considered in his request for withdrawal of his application. He asserted, in effect, that in his role as an IG, his experience with inactivation and transition benefit related issues would best be used in attaining the goals of the United States Army Reserve (USAR) and the attrition of its soldiers. He also asserted that given his record and training, it made no sense to train someone else.

On 1 February 1996, the Chief, Officer Management Division of the Army Reserve Personnel Center (ARPERCEN), forwarded the applicant’s request to the command surgeon with a request that it be evaluated to determine if his request met the provisions of medical hardship.

The command surgeon indicated on 6 February 1996 that the applicant had submitted no evidence to show that his wife’s medical problems created an unforeseen medical hardship.

On 6 March 1996, the applicant submitted a memorandum to the Assistance Division of the Department of the Army Inspector General (DAIG) in which he asserted that the VERP offered by the CAR was a flawed process, that his request to withdraw his retirement application was unjustly denied, and that his request for early retirement amounted to an involuntary separation.

On 23 April 1996, the Office of the Deputy Chief of Staff for Personnel (ODCSPER) at the Department of the Army disapproved the applicant’s request to withdraw his request for retirement. The Director of Military Personnel Management (a major general) indicated in his disapproval action that the record of evidence did not constitute an unforeseen medical condition and that his wife’s condition had not changed since the applicant submitted his initial application.

The office of the DAIG responded to the applicant’s request on 23 May 1996 and opined, in effect, that the applicant’s retirement request and his request for withdrawal were processed in accordance with the rules applied to all applications postmarked by January 5, 1996. It further opined that the FY96 REFRAD actions were valid and proper and that his accusation that the VERP was fraudulent and improper was unsubstantiated.

The applicant dispatched a letter to the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA M&RA) on 1 August 1996, asserting, in effect, that the VERP was fraudulent, was improperly managed, that he was being forced to retire against his will and that the OCAR had purposely delayed and unjustly denied his request to withdraw his application for retirement.

On 21 August 1996 the ASA M&RA responded to the applicant’s letter and opined, in effect, that his request to withdraw his retirement application did not meet the requirements for withdrawal and that his request could not be supported by that office.

The applicant also dispatched a letter to the President of the United States on 23 August 1996, wherein he again asserted that the VERP/REFRAD actions were fraudulent, improperly managed, and amounted to a cover-up to prevent the embarrassment of having so many requests being required to be forward to the President for approval. He also asserted that he was being forced to involuntarily retire and that the disapproval of his request to withdraw his retirement application was unjustly delayed and improperly disapproved. On 30 October 1996, the OCAR responded to the applicant’s letter to the President and informed him, in effect, that the actions taken in his request were proper.

Meanwhile, on 31 August 1996, the applicant was honorably released from active duty in the rank of LTC and was placed on the Retired List effective 1 September 1996, under the provisions of Army Regulation 600-8-24 and the VERP. He had served 17 years and 10 months of total active service.

On 5 February 1997, the applicant corresponded with his congressional representative contending that his request to withdraw his retirement application had been unjustly denied and that the OCAR had been involved in unfair practices that affected many Retired officers.

On 25 February 1997, in response to a congressional inquiry on behalf of the applicant, the ODCSPER responded to the allegations of impropriety surrounding the implementation of the VERP. It opined that after a thorough and exhaustive review of the circumstances involving the applicant’s VERP application, there was no substantive evidence that the applicant was improperly or unjustly retired. The ODCSPER informed the member of Congress that the applicant could apply to this Board to have his case reconsidered.

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

2. The Board has noted the applicant’s contentions and finds them to be without merit. Although the Board understands the frustrations that the applicant and other officers in similar circumstances face during a draw-down, the fact remains that the officers affected, as well as the Department, must make hard and informed decisions that affect their careers.

3. In the applicant’s case, he elected to submit a request for voluntary retirement under the VERP, rather than to risk involuntary separation under a REFRAD Board that was tentatively scheduled to convene if sufficient numbers of officers did not voluntarily retire. Fortunately for the Department, sufficient numbers of officers elected to retire under the VERP, which allowed the Department to cancel the REFRAD Board and prevented the involuntary separation of officers.

4. Unfortunately, the applicant changed his mind shortly after he submitted his application for retirement and his request to withdraw his application was denied. Although the applicant contended that he (his wife) had an unforeseen medical condition, the applicant has failed to show through the evidence submitted or the evidence of record that such was the case. All of the evidence submitted indicates that his wife’s medical condition existed prior to his submitting his application for retirement and has essentially remained the same.

5. After reviewing all of the available evidence, the Board finds that the actions taken to approve his request for retirement and to deny his request to withdraw his application were accomplished in accordance with the applicable guidance in effect at the time, with no indication of any violations of the applicant’s rights. While the applicant may not agree with the outcome, he was involved in the decisions that were made and which ultimately affected the outcome.

6. The Board is also convinced that the Department made every effort to ensure that personnel that were to be effected by the realignment efforts were afforded the best possible opportunities available under the circumstances and made every reasonable effort to ensure that due process was adhered to. Additionally, the Board is also convinced that the Department made its strategy known to the officers affected and based on the response to the offer of early retirement under the VERP, it is apparent that it was well received. As such, there appears to be no basis to void his retirement and restore him to active duty.

7. 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

__teo___ ___kak__ ___reb___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058334
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/12/11
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 192	110.0300/REINSTATE TO AD
2. 335	135.0300/CHG STATUS
3.
4.
5.
6.