PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 11 April 2002
         DOCKET NUMBER: AR2001064650


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

Mr. Carl W. S. Chun		Director
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Richard T. Dunbar		Member
Mr. Elzey J. Arledge		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his discharge be changed to Retired Reserve and reinstatement of his VSI (Voluntary Separation Incentive) payments.

3. The applicant states, in effect, that his discharge should be changed to Retired Reserve and that his VSI payments should be reinstated. He was
never notified of his second passover to lieutenant colonel (LTC) and impending discharge status. He also states that his address was correct but no notification was ever received and that his status should be changed to Retired Reserve with full reinstatement of VSI benefits. In support of his application, he submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

4. The applicant’s military records show he was appointed as a Reserve commissioned officer in the rank of second lieutenant on 26 May 1979. He was
commissioned as a second lieutenant in the Regular Army on 4 January 1980.

5. He was promoted to the rank of captain/0-3 on 1 September 1983.

6. On 30 September 1992, the applicant was released from active duty under the provisions of Army Regulation 635-120, chapter 3, miscellaneous reasons (unqualified resignation). He had a total of 12 years, 8 months, and 27 days of creditable service. He was transferred to a USAR Control Group Individual Ready Reserve (IRR). Item 18 (Remarks) of his DD Form 214 states that he would be paid VSI in the amount of $11,993.94 for 26 years.

7. He was promoted to the rank of major/0-4 on 1 October 1992.

8. Informal coordination with the staff of the Promotions and Notifications Branch, Office of Reserve Components Promotions, Total Army Personnel Command (PERSCOM) revealed that the applicant was considered, but was not selected, for promotion to lieutenant colonel by the 1998 and 1999 RCSB’s due to unknown reasons. Information also revealed that the applicant had completed 20 years of commissioned service and had to be retired/discharged in accordance with Title 10, United States Code, section 14506.

9. The applicant was honorably discharged from the USAR on 7 June 2000, under the provisions of Army Regulation 135-175. There is no evidence of record that the applicant was provided the opportunity to request transfer to the Retired Reserve.

10. A copy of the applicant’s chronological Statement of Retirement Points
(Summary Points/Inquiry/Update) was provided by AR-PERSCOM to a staff member of the Board. The document indicated that the applicant had completed 0 years of qualifying service for retirement purposes.


11. Army Regulation 635-120 prescribes policy and procedures governing transfer and discharge of Army officer personnel from the Active Army. Chapter 3 provided for the voluntary release of officers from active duty under the Early Release Program-VSI.

12. Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. The regulation provides that mandatory selection boards will be convened each year to consider Army Reserve officers in an active status for promotion to captain through lieutenant colonel. The regulation provides that in order to be qualified for promotion to lieutenant colonel an individual must have completed 50 percent of the CGSC, 7 years of time in grade (TIG) as a major, and an officer advanced course (OAC) on or before the convening date of the respective promotion board. The regulation also states
that an officer who twice fails to be selected for promotion to lieutenant colonel
will be removed from an active status.

13. Army Regulation 135-175 provides policy, criteria, and procedures governing the separation of officers of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR), except for officers serving on active duty or active duty training exceeding 90 days. Paragraph 4-4 pertains to the removal from an active status. It states, in pertinent part, that officers in the grade of first lieutenant, captain, or major who completed their statutory military obligation, will be discharged for failure to be selected for promotion after second consideration by a DA Reserve Components Selection Board.

14. Title 10, United States Code (USC), section 14506, states that an officer in the grade of major who twice fails to be selected for promotion to lieutenant colonel will be separated no later than the first day of the month after the month in which the officer completes 20 years of commissioned service.

15. Title 10, USC, section 14513, states that a Reserve officer of the Army, who is in an active status and whose removal from an active status or from a Reserve active-status list is required by section 14506 of this title shall: 1) be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officer’s armed force; 2) be transferred to the Retired Reserve, if the officer is qualified and applies for such transfer; or 3) if the officer is not transferred to an inactive status or the Retired Reserve, be discharged from the officer’s Reserve appointment.

16. Department of Defense (DOD) Financial Management Regulation, Volume 7A, Chapter 35, paragraph 350801, subparagraph F, states: “The member must accept voluntary appointment…to the Ready Reserve of a Reserve Component and must continue to serve in a Reserve Component during the entire period of eligibility for VSI. If the member does not continue to serve in the Ready Reserve, the VSI installments terminate on the date of separation from the Reserve Component or transfer to the Retired Reserve.” Exceptions are provided for 2-time non-select for promotion, medical disability, age or other
involuntary reasons.

17. 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 VSI was one of the monetary benefits associated with this incentive program. The voluntary incentive program was designed to support the Army's drawdown. HQDA message 281802Z January 1992, clarified issues associated with the voluntary separation incentive program via a question and answer format. It stated that, soldiers approved for VSI would be paid in annual installments commencing on their departure date from Active Duty, and on each anniversary date thereafter for twice the number of years on Active Duty, provided the soldier continues to serve in the Ready Reserve. VSI annual payments will be discontinued if the member is separated from the Ready Reserve unless the individual becomes ineligible to continue to serve due to medical or age limitations in which case the soldier will be transferred to the Standby Reserve or the Retired Reserve.

CONCLUSIONS:

1. The applicant was properly considered for promotion by the 1998 and 1999 RCSB’s. He was not selected for promotion and was subsequently removed from the Ready Reserve based on his nonselections.

2. The evidence of record shows that he had completed 20 years of commissioned service instead of 20 years of qualifying service prior to 7 June 2000, and had to be discharged in accordance with Title 10, USC, section 14506.

3. The Board notes that the applicant was entitled to VSI payment in the amount of $11,993.94 for 26 years and that he must continue to serve in a Reserve Component during the entire period that he receives VSI entitlements unless separated for medical, age, or service limitations.

4. The Board contends that in view of the circumstances, and in the interest of justice, his honorable discharge of 7 June 2000 should be revoked and he should be transferred to the Retired Reserve. The applicant’s VSI payments should be resumed and any annual payments, which were lost as a result of his separation, be paid retroactively.



5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected in the interest of justice:

a. by declaring the applicant’s 7 June 2000, honorable discharge from the Army Reserve null and void;

b. by transferring the applicant to the Retired Reserve effective 7 June 2000, in the grade of major;

c. by restoring his entitlement to annual VSI payments; and

d. by retroactive payment of any lost VSI payments, which resulted from the separation action.

BOARD VOTE:

___mp___ ___rd__ __ea___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Margaret K. Patterson__
                  CHAIRPERSON

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INDEX

CASE ID	AR2001064650
SUFFIX
RECON
DATE BOARDED	20020411
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20000607
DISCHARGE AUTHORITY	AR 135-175
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 338
2.
3.
4.
5.
6.