MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 April 2002
         DOCKET NUMBER: AR2001064450

         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
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Hubert O. Fry, Jr.		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: That his records be corrected to reflect that he elected separation from active Army under the Variable Separation Incentive (VSI) Program instead of the Special Separation Benefit (SSB) Program.

APPLICANT STATES: That shortly after he was separated from the Army under the SSB Program, the VSI Program was changed to reflect the same benefits as the SSB Program. He believes this to be unfair because these differences were the deciding factors in his “original” selection. He states that if all had been equal at the time, he would have chosen the VSI Program instead of the SSB Program. He states that he gave up a significant amount of future income based on the benefits associated with the SSB Program. He believes that he should have been offered the opportunity to change from the SSB Program to the VSI Program.

In support of his application, the applicant submitted a copy of his request for voluntary release plus command endorsements; DA Message 071237ZAPR92, Subject: REFRAD; and reassignment orders #161-4. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) was not included with the documents submitted to the Board in support of his application.

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

He was commissioned as a United States Army Reserve (USAR) second lieutenant (2LT/0-1) on 31 May 1981 and entered active duty on 15 June 1981. He served in the aviation field and attained the rank of Captain (CPT/0-3).

On 12 March 1992, the applicant voluntarily requested release from active duty under the provisions of chapter 3, Army Regulation (AR) 635-100 by reason of the Voluntary Incentive Program (VIP) - SSB, effective 28 September 1992. He stated that he desired to pursue a civilian career upon release from active duty. The applicant’s chain of command recommended approval of the request and noted that he had been counseled regarding separation and transition benefits under the VIP and in accordance with MILPER Message DTG 202100Z Dec 91.

On 28 September 1992, the applicant was released from active duty with an honorable discharge upon approval of SSB under the FY92 VIP after completing 11 years, 3 months, and 14 days of active military service. He was paid a lump sum payment of $60,901.20 and was transferred to the US Army Reserve Control Group (IRR).

The National Defense Authorization Act for FY92 established two monetary incentive programs to assist in maximizing voluntary separations during the drawdown period of military forces. The two monetary incentives included the SSB, a lump sum payment equal to 15 percent of the soldier’s annual basic pay multiplied by his years of active service, and the VSI, an annual annuity payment equal to 2.5 percent of the soldier’s annual basic pay multiplied by his years of service and paid for twice the number of years served. The FY92 program provided that soldiers electing the SSB would not forfeit any compensation received if they subsequently served on active duty, or on Reserve duty in a pay status. Additionally, they were granted several non-monetary transition benefits including commissary and exchange privileges, employment preference in nonappropriated fund positions, and transitional health care (CHAMPUS or medical treatment facility). Soldiers electing to receive the VSI were denied those transitional benefits during the FY92 program. However, when the FY93 program was announced as part of the Defense Authorization Act of FY93 those disparities were equalized.

The VIP was just one of several programs authorized by Congress and implemented by the services to provide temporary management tools to reshape the military through FY95. Initially, only a non-monetary, voluntary separation program was announced providing retirement opportunities for some soldiers who had less than 20 but more than 15 years of active military service. None of the drawdown incentive programs were an “entitlement” and the decision to participate was a “voluntary” one for those interested soldiers who met strict eligibility requirements.

The VSI Program was an incentive program offered to active duty members to aid in downsizing the active force. VSI payments are made on each anniversary of the separation date. This payment is a consistent amount, meaning there will never be a cost of living adjustment (COLA). The number of annual payments equals twice the number of years of active duty service. Once the separatee was approved for the VSI Program and accepted payment, he/she automatically incurred a 3-year obligation to serve in the Ready Reserve (RR). This 3-year obligation was either 3 years from the date of separation from active duty or 3 years beyond any existing statutory requirement (6 or 8 year military service obligation, or contractual obligation), whichever was later. If the separatee is terminated from the Ready Reserve program for reasons other than medical, age, failure to be selected for promotion, etc., the payments will be stopped. In case of death, the remaining payments go to the designated beneficiary. If the member ultimately receives military retirement pay, the total amount of all payments must be paid back. If the member qualifies for disability pay, the VSI payments will be reduced by the amount of disability pay.

The Special Separation Benefit (SSB) program was an incentive program offered to active duty members to aid in downsizing the active force. The SSB was a single, lump-sum payment made to the separatee upon release from active duty. Upon being approved for the SSB Program and accepting payment, the separatee automatically incurred a 3-year obligation to serve in the Ready Reserve. This 3-year obligation was either 3 years from the date of separation, or 3 years beyond any existing statutory requirement (military service obligation, contractual obligation), whichever was later. If the member ultimately receives military retirement pay, the entire amount of SSB must be paid back. If the member qualifies for disability pay, the SSB payment will be deducted from the disability pay.

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. The evidence of record shows the applicant was separated under the provisions of the VIP in effect at the time and that he voluntarily elected to separate from active duty under the SSB Program. The fact that, subsequent to his separation, changes were made to the incentive program which, had they been in effect at the time of his separation, would have caused him to make another selection is not now a basis to amend his election.

2. Just as soldiers who were separated in the early years of the drawdown program without any monetary benefits are not now permitted to obtain either the monetary separation benefit or participate in the early retirement program, soldiers who elected one version of the VIP over the other should not be allowed to change their election simply because a more advantageous program was implemented.

3. The applicant’s voluntary separation was accomplished in compliance with applicable laws and regulations in effect at the time with no indication of procedural error that would tend to jeopardize his rights.

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

___AAO_ ___HOF_ ___TEO__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002064450
SUFFIX
RECON
DATE BOARDED	20020430
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19920928
DISCHARGE AUTHORITY	AR 635-100, paragraphs 3-16 and 3-63
DISCHARGE REASON	Special Separation Benefit
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.	128.0600
2.
3.
4.
5.
6.