PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 1 August 2002
         DOCKET NUMBER: AR2002068816


         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Regan K. Smith		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, in effect, that she be transferred to the Individual Ready Reserve (IRR) of the United States Army Reserve (USAR) in order to allow the reinstatement of her Voluntary Separation Incentive (VSI) payments.

3. The applicant states, in effect, that she spent 12 years on active duty in the United States Air Force (USAF) and that she was separated during the downsizing of the Armed Forces in the early 1990’s. In connection with her separation, she was authorized VSI payments annually for twice the number of years she served on active duty. In order to maintain eligibility to receive these payments, at a minimum she is required to remain a member of the Reserve. She states that when she was discharged from the Indiana Army National Guard (ARNG), in December 2000, this requirement was neglected and the appropriate action necessary to effect her transfer into the IRR of the USAR was never taken. In support of her application, she provides copies of all her discharge orders and associated revocation orders, ARNG separation document (NGB Form 22), an Inspector General (IG) office cover sheet listing involved parties, and a letter she sent to her Member of Congress.

4. The applicant’s military records show that she served on active duty in the USAF for 12 years, 1 month, and 15 days, from 17 June 1980 through 1 August 1992, at which time she was honorably separated and transferred to the USAF Reserve. The DD Form 214 issued to the applicant upon her separation confirms that she was authorized an annual VSI payment of $5,966.02 for
24 years.

5. On 19 December 1997, the applicant enlisted in the Indiana ARNG, and served in that status for 3 years until being honorably discharged at the expiration of her term of service (ETS) on 18 December 2000.

6. The separation document (NGB Form 22) issued to the applicant upon her release from the Indiana ARNG contains the entry “NA” in Item 9 (Command to Which Transferred), which indicates that she was not transferred to a USAR status. Item 23 (Authority and Reason) contains an entry that indicates that the applicant was discharged under the provisions of paragraph 8-26i, National Guard Regulation (NGR) 600-200, by reason of ETS.

7. Orders Number 018-010, dated 18 January 2001, issued by the Military Department of Indiana, directs that the applicant be discharged from the ARNG and as a Reserve member of the Army, effective 18 December 2000. The authority listed in these orders is paragraph 8-26i, NGR 600-200. Orders Number 227-009, dated 15 August 2001, issued by the Military Department of Indiana, directed that Orders Number 018-010 be revoked.

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8. Orders Number 227-010, dated 15 August 2001, issued by the Military Department of Indiana, directed the applicant be discharged from the ARNG and transferred to the USAR Control Group (Reinforcement), 9700 Page Boulevard, St. Louis, Missouri, effective 18 December 2000.

9. On 4 January 2002, a correction to the applicant’s NGB Form 22 (NGB Form 22a) was published by the Indiana ARNG. This document changed Item
9 (Command to Which Transferred) of the applicant’s 18 December 2002 NGB Form 22 to read “ARPERCEN Control Group (Reinforcement), 9700 Page Blvd, St. Louis, Mo 63132-5200” and the entry in Item 23 (Authority and Reason) to read “Para 8-27e (Request for the soldier not to be discharged from the Reserve of the Army status in order to become a member of the Army Reserve)”.

10. An Army Reserve Personnel Command (ARPERSCOM) record of case contacts pertaining to the applicant, dated 14 March 2002, reveals that the applicant has made repeated attempts to correct her status in order to regain her eligibility for VSI payments through ARPERSCOM officials since at least July 2001.

11. In connection with the processing of this case, an advisory opinion was requested of and received from ARPERSCOM retention officials. It stated that the applicant cannot transfer to the IRR without a contract. She must have a remaining service obligation to transfer to the IRR. It also indicates that the Indiana ARNG is the command responsible to backdate the applicant’s reenlistment so that she has contractual time remaining to serve in the IRR. Once this action is accomplished by the Indiana ARNG and proper documentation of the reenlistment is received, they can take action to update their system and notify the Defense Finance and Accounting Service (DFAS) to release the applicant’s VSI payment.

12. 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 voluntary separated members. The VSI was one of the monetary benefits associated with this incentive program. The policy published to support the military drawdown stipulated that members 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 that the member continued to serve in the Ready Reserve. It further stipulated that VSI annual payments would be discontinued if the member was separated from the Ready Reserve, unless the individual became ineligible to continue to serve due to medical or age limitations. In these cases, the member would be transferred to the Standby Reserve or the Retired Reserve.

CONCLUSIONS:

1. The evidence of record confirms that it was the applicant’s intent to enlist in the IRR of the USAR concurrent with her discharge from the Indiana ARNG. Further, it is clear that she was unaware that she was not being transferred to the IRR and that this transfer required an enlistment contract that should have been completed by Indiana ARNG officials in conjunction with her discharge.

2. The evidence of record confirms that as soon as Indiana ARNG personnel officials discovered that they had not transferred the applicant to the IRR concurrent with her discharge, they attempted to resolve the error by amending the applicant’s discharge orders to allow for her transfer to the IRR of the USAR. However, this was not sufficient to effect the action. As noted in the advisory opinion from ARPERSCOM retention officials, the applicant could not be transferred to the IRR without an enlistment contract and a remaining service obligation.

3. In the opinion of the Board, it would be unjust to let stand an action that was accomplished without the responsible command’s full knowledge of the impact it would have on the applicant’s VSI eligibility. Further, the Board finds an unintentional injustice was served upon the applicant as a result of her never being properly counseled on the service remaining requirement for her to be transferred to the USAR, and because she was never afforded the opportunity to take the necessary reenlistment action that would have allowed this transfer to the USAR upon her discharge from the Indiana ARNG.

4. In view of the circumstances of this case, the Board concludes that the responsible officials of the Indiana ARNG should antedate an enlistment contract pertaining to the individual concerned enlistment contract for the applicant that would authorize her entry into the IRR of the USAR concurrent with her discharge from the Indiana ARNG, which would allow her transfer into the USAR and restore her eligibility to receive her remaining annual VSI payments.

5. In addition, the Board finds that it would be appropriate to provide the applicant any annual VSI payments, which were lost as a result of his discharge from the ARNG, retroactively.

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6. 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 be corrected by providing the individual concerned an antedated enlistment contract, effective 19 December 2000, and that she was transferred to the IRR concurrently with her discharge from the Indiana ARNG; by restoring her entitlement to annual VSI payments; and by authorizing her retroactive payment of any lost VSI payments which resulted from her discharge from the ARNG.

BOARD VOTE:

__SAC__ __MHM__ __RKS__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Samuel A. Crumpler___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002068816
SUFFIX
RECON
DATE BOARDED	2002/08/01
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2000/12/18
DISCHARGE AUTHORITY	NGR 600-200
DISCHARGE REASON	ets
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 333	135.0100
2.
3.
4.
5.
6.