MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 November 2001
         DOCKET NUMBER: AR2001058366

         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:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Ms. Karen Y. Fletcher		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: That he be transferred to the United States Army Reserve (USAR) Control Group (Retired) and that he be paid the Selected Reserve Transition Benefits (SRTB) that he was promised.

APPLICANT STATES: In effect, that while assigned to a troop program unit (TPU) in Florida, he was advised that his unit was being deactivated and that there were no valid drilling positions for Army aviators in the local commuting area. He goes on to state that he was asked to complete a Department of the Army (DA) Form 4187 in order to receive SRTB. Although he was offered and accepted the contract, no benefits have been paid to date because he was informed that warrant officers were not authorized to receive SRTB. However, he has since learned that 829 other Reserve warrant officers have received the benefits. He continues by stating that he completed his required application in January 1999 and in March 1999 the USAR Command (USARC) made a policy decision not to pay transition benefits. This decision was not communicated to his chain of command and the unit was deactivated in April 1999. Consequently, the USARC offered him the option to remain in a new unit in an over-strength status while they searched for a valid position. The new unit was not an aviation unit and provided no military occupational specialty (MOS) training. He also states that he was only authorized to be in an over-strength status for 1 year; however, he has continued to remain over-strength well beyond the 1-year limit authorized by the applicable regulatory guidance and has reduced his annual drill pay by 40% and resulted in a denial for promotion to the rank of chief warrant officer three because he is not occupying a valid position. He further states that he initiated a Request for Redress under Article 138 of the Uniform Code of Military Justice (UCMJ) and his request resulted in no relief from the injustice that has been imposed against him. In support of his application he submits an extensive packet of information relating to his attempts to receive his transfer to the Retired Reserve and SRTB.

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

He was commissioned as a USAR second lieutenant on 11 February 1965 and was ordered to active duty on 3 April 1965 as an infantry aviator. He served 1 year in Vietnam and was promoted to the rank of captain on 1 October 1967. He remained on active duty until 2 October 1968, when he was honorably released from active duty and was transferred to the USAR Control Group (Reinforcement).

On 16 December 1968, he accepted a commission as a captain in the Connecticut Army National Guard (CTARNG). He was subsequently discharged from the CTARNG and was transferred back to the USAR. In 1985 he received a 20-year letter notifying him that he had completed the required years of service to be eligible for Retired pay at age 60 (31 December 2003). He was promoted to the rank of colonel on 15 August 1988.
Although the record is silent as the circumstances, his records show that he accepted an appointment in the Illinois Army National Guard (ILARNG) to the rank of chief warrant officer two (CW2) on 31 August 1993. He remained with the ILARNG until 1 October 1997 when he was honorably discharged and was transferred to a USAR TPU in Orlando, Florida.

On 30 January 1999, he submitted a DA Form 4187 requesting that he be transferred to the Retired Reserve with special separation pay because his unit was being deactivated and assignment to another unit was not available. He also submitted an addendum with his request, which indicated that he understood the options available to him under the circumstances. The options explained indicated that if he was not placed in a valid position within 1 year, he would be transferred from the TPU and given the appropriate transition benefits. There is no indication as to the outcome of his request in the available records. However, it appears that the applicant was transferred to another unit in an over-strength status and he is currently in the same unit.

On 26 March 1999, the applicant’s USARC dispatched instructions regarding the SRTB Program. The instructions indicated that while SRTB had been approved through Fiscal Year 2001, the USAR was under-strength and the USARC had made a decision not to pay transition benefits. The instructions also indicated that it was the intent of the USARC to make every attempt to find valid slots for it’s soldiers and that they would be double slotted if necessary.

On 7 October 2000, the applicant submitted a request for Redress under Article 138, UCMJ to the commanding general of the USARC contending that he should have been transferred to the Retired Reserve with separation pay because he was an aviator assigned to an over-strength position for the past 17 months in a non-aviation unit. He also indicated that there were no vacant positions for him to fill and that because he had exceeded the 1-year limitation in an over-strength status, he was entitled to receive SRTB.

On 31 October 2000, the Chief of Staff of the USARC (a brigadier general) responded to the applicant’s request for Redress. He indicated that the applicant had the option of submitting a request for transfer to the Retired Reserve if he so desired; however, he was not entitled to separation pay because such pay had been designated by the Secretary of the Army on 8 July 1993 to be provided to company and field grade officers who had lost their positions.

The commanding general of Forces Command (FORSCOM) conducted an investigation into the applicant’s Request for Redress and found that the applicant’s complaint had no merit. He explained that the commanding general (CG) of the USARC had acted within his authority and the applicable regulations by allowing the applicant to remain in a paid drill over-strength status, that the CG was acting within Secretary of the Army guidance to limit SRTB to company and field grade officers, that the applicant’s status (paid over-strength) provided him the same benefits that he would have received through SRTB and at the same time allowed the Army to keep him as a deployable asset. He forwarded a copy of his response to the applicant to the Department of the Army, Office of the Judge Advocate General (OTJAG).

The OTJAG reviewed the applicant’s complaint and determined that the actions taken were proper. The OTJAG also opined that although some warrant officers had received SRTB payments, those payments were unauthorized and are subject to collection. Only selected company and field grade officers were designated to receive SRTB payments. The OTJAG further opined that the general court-martial convening authority was within his authority to retain the applicant in an over-strength status and noted that the Board could grant the applicant’s request for SRTB based on equity considerations given the payments previously made to others in similar circumstances.

The National Defense Authorization Act (NDAA) for Fiscal Year 1993 authorized a number of transition incentives for members of the Selected Reserve affected by the reduction in force at the time. Section 4416(b) of the Act authorized the Secretary of the Army to grant annual Special Separation Program (SSP) payments for a period of up to 5 years to certain soldiers in the Selected Reserve. Under section 4416(f)(1) and subject to regulations prescribed by the Secretary of Defense, the Secretary of the Army may limit the applicability of SSP to any category of personnel to meet an Army need to reduce the number of soldiers in certain grades, skills, and years of service. On 8 July 1993, the Assistant Secretary of the Army (Manpower and Reserve Affairs) issued guidance for the implementation of section 4416(b). It provided, in effect, that SSP payments would be made only to certain company and field grade officers who met all of the prescribed criteria.

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. While the applicant has had the option of requesting transfer to the Retired Reserve since the time he received his 20-year letter, he is not entitled to receive SRTB payments under the prescribed guidelines.


3. The Board notes the applicant’s contention that other warrant officers have received SRTB payments; however, as he has previously been informed, those payments were made erroneously and are subject to collection. Although the Board has the authority to award him SRTB payments as a matter of equity, to do so would simply compound the mistakes already made and would possibly result in a subsequent collection of those funds.

4. Inasmuch as he is not authorized to receive SRTB payments under the applicable guidelines, the Board finds no basis to grant such payments.

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

__fe ____ __kf ____ __be____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058366
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/11/08
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 297	128.1400/SRTB
2.
3.
4.
5.
6.