PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 10 July 2003
         DOCKET NUMBER: AR2002073499


         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:

Mr. Roger W. Able		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Larry C. Bergquist		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 he be transferred to the Retired Reserve with award of Reserve Special Separation Pay (RSSP).

3. The applicant states that the 159^th Corps Support Group (CSG) was deactivated in April 2000 and he was transferred to the 652^nd Area Support Group (ASG) as overstrength. They had no valid position for his military occupational specialty (MOS) and rank. He met the requirements for RSSP but was denied. Six soldiers from the 159^th CSG filed a Department of the Army Inspector General (IG) complaint in December 2000; however, they received no reply. In support of his application, he submits copies of his: unit manning report; fact sheet pertaining to the Inactivation of the 159^th CSG; DA Form 4187 (Personnel Action); 652^nd Personnel Status Roster, dated 14 October 2000; and a memorandum from the Unit Administrator.

4. The applicant’s military records show that he was born on 6 November 1947 and enlisted in the US Army Reserve (USAR) on 10 April 1967, where he continues to serve.

5. A fact sheet, signed by the group deputy commander and five of the senior
members of the command, pertaining to the inactivation of the 159th CSG, was provided. It stated that the 96^th Regional Support Command (RSC) Commanding General made several promises to soldiers in which he stated that they would be taken care of during the deactivation process of the 159^th CSG. The final decision to deactivate the unit came in March 1999. The RSC began removing command functions from the unit in July 1999 and completed the process by 31 September 1999. The soldiers received a briefing on transition rights and benefits. Soldiers were informed that they would either be placed into a valid position within the Helena, Montana area or be authorized transition benefits allowed by regulation. The transition packet received by all soldiers stated that if a valid assignment was not available that each soldier qualified for separation pay would receive separation pay for a five-year period and then retired pay from the USAR program at age 60.

6. A valid assignment was defined in the fact sheet as a position within fifty miles of their existing unit or whatever distance the Reservist was currently traveling to drill with the appropriate rank and MOS position. As the 159^th CSG deactivation process began, many of the soldiers were transferred into the 652^nd ASG in Helena, Montana. Others were transferred to other units throughout Montana at their request or simply retired. Six soldiers submitted packets requesting transition benefits as presented to them from higher headquarters. Each




individual who forwarded a packet was at or near retirement eligibility having served 18 years or more of service in the military, and most were Desert Storm veterans. The final packets were forwarded to the RSC in December 1999 for determination of eligibility and processing. The packets were mailed from the RSC to the USAR Command (USARC) in Atlanta, Georgia in March 2000 for a decision from that staff on paying the benefits. The RSC had held the packets for 3 months and was unable to make a determination of eligibility. The packets were finally forwarded to the USARC with a recommendation of approval on 14 February 2000 and at that same time the 96^th RSC expedited the deactivation time frame of the 159^th CSG to April 2000. Units being deactivated are normally given a one-year transition period for soldiers and equipment; however, the 159^th CSG was given 6 ½ months.

7. The fact sheet went on to state that, with the time period being compressed, the 96^th RSC was pushed for a final decision on their transition packets and were finally told the first week of April that the decision by the USAR was to not pay any transition benefits. This action was completed through a variety of "back channel" e-mails and word of mouth. No official decision had come to them in writing until 3 June 2000. The decision was made by the USARC to double and triple slot them into the 652^nd ASG. This decision was based on erroneous strength data claming the 652^nd was short soldiers and all of them had valid slots for "homes" in this unit. The reality was that the USARC used 159th CSG strength data instead of the 652^nd ASG data. The RSSP denial claims that the 652^nd had 129 authorized positions with only 28 positions filled making it appear that there was a shortage of soldiers in the unit. The reality was that there was only 29 authorized positions and every one of them added to the unit had been placed in an excess authorization. There were invalid assignments made to skirt the system in a technical sense to apparently deny them benefits that they were authorized to receive.

8. The undersigned soldiers of this fact sheet listed their concerns with the process and final decision not to pay benefits. The transition benefits were part of the deactivation program. It seemed very arbitrary that the RSC and the USARC could pay some units benefits and was unable to pay others. The 96^th RSC should have presented the transition benefits to the 159^th in the Spring of 1999, when the decision was made to deactivate the unit. This would have allowed soldiers to prepare themselves for a smooth transition to other units. There was a huge rush to eliminate the 159^th CSG to make room for the 652^nd ASG and eliminate the Command authority of the 159^th. The 159^th was required






to complete a Joint Readiness Training Center (JRTC) mission in September 1999 just days before the September 1999 deactivation. They felt that they were kept alive just long enough to complete one more critical mission for the Army before they were sent packing. This had a huge negative impact on the soldiers involved. The transition benefits actually came after soldiers had already been reassigned and some had already retired or left the program. The fact that the RSC held their packets for 3 months negatively impacted their ability to collect these benefits.

9. The soldiers went on to state that the 96^th RSC skirted the intent of the transition benefits by directing that the 652^nd ASG Commander publish orders reassigning all remaining soldiers in the 159^th CSG into the 652^nd positions as overstrength. This decision was questionable, as the 652^nd ASG had no command authority over the 159^th CSG, which made those reassignment orders inappropriate at best. They were all senior personnel being double or triple slotted in a peacetime command and control unit without the duties to occupy them appropriately, which was a waste of their time and the military's. Retaining them in the Army actually cost the military two to three times as much money as the transition payments would cost.

10. The most important fact was that the entire letter of denial was based on erroneous strength data of the 652^nd ASG. They were only authorized 29 soldiers and every one of them had been placed into an excess category. The letter of denial from the USARC was an error because the alternative was that they were lying and trying to cheat soldiers from benefits. They have no jobs, no mission, and no valid positions. These cannot be valid assignments inside the USAR program.

11. In conclusion, their argument was that this was a horrible way to treat any soldier let alone an entire unit. The 159^th had served overseas in various countries, completed three extremely challenging JRTC rotations, and multiple assignments in Germany over the last 3 years. With a combined 143 years of dedicated service, the unit members deserved better treatment than they had received during this deactivation process. They ask that this Board investigate the matter and reevaluate the decision to deny their transition benefits.

12. On 2 October 1999, the applicant elected transfer to the Retired Reserve with Special Separation Pay. Assignment to another unit was not available. The appropriate authority recommended approval on 6 November 1999. As of July 1999, he had completed 23 years of qualifying service for retired pay at age 60




13. The applicant provided a copy of the 652^nd ASG unit manning report, dated 5 August 2000, which listed him as overstrength.

14. The applicant provided a copy of the 652^nd ASG personnel status directory, dated 14 October 2000, which failed to show the applicant's name.

15. The applicant provided a copy of a 4 May 2002 652^nd ASG unit manning report, which shows that he was assigned to serve as a senior logistics service NCO, in pay grade E-9, in position number 0430, paragraph and line number 110-05, in duty military occupational specialty (DMOS) 92Z50, with an authorized grade of E-9. His effective date of assignment was 2 October 2000.

16. The applicant provided a copy of a memorandum from the 652^nd ASG unit administrator, dated 22 May 2002, which stated that the position currently held
by the applicant was not an authorized position for the 652^nd ASG. He also stated that the unit was located in Helena, Montana. The unit is authorized
29 personnel and currently has 32 personnel assigned.

17. The applicant’s records contain a copy of his Chronological Statement of Retirement Points which shows that he had completed 25 years of qualifying service for retirement purposes.

18. The National Defense Authorization Act for Fiscal Year 1993 (NDAA FY93), Public Law 102-484, Title XLIV, Subtitle B – Guard and Reserve Transition Initiatives, dated 23 October 1992, provides for, among other things, Selected Reserve transition assistance. The assistance was initially provided based on a large reduction in forces, effective 23 October 1992 through 30 September 1995, and had been extended through 2001. The assistance included separation pay, SSP, or early qualification for retired pay at age 60.

19. On 11 March 1993, the Deputy Assistant Secretary of Defense (Military Manpower and Personnel Policy) issued a memorandum providing the Service Secretaries implementing guidance for the Selected Reserve transition programs authorized in the NDAA. The guidance provided that the Secretaries may designate the categories of personnel eligible for SSP. The guidance included priority consideration to members who lost their position due to inactivation for existing or projected vacancies with other Selected Reserve units.







20. On 18 August 1993, by a priority message to all Army National Guard (ARNG) and Army Reserve units, the Office of the Deputy Chief of Staff for Personnel (DCSPER) provided implementation guidance concerning Selected Reserve transition assistance. All of the foregoing guidance was included except the guidance concerning those eligible for SSP. It addressed all soldiers and specified that the message was coordinated with the offices of the Assistant Secretary of the Army (ASA) Manpower and Reserve Affairs (M&RA), National Guard Bureau, and the Office of the Chief, Army Reserve (OCAR). It also stated that soldiers would only be assigned to an unauthorized or overstength position for 1 year and then given the option of transfer to the Retired Reserve with entitlement to SSP.

21. On 28 January 1995, the ASA (M&RA) provided revised Special Reserve Transition Benefit (SRTB) Program policy guidance to the DCSPER, Director of the ARNG (DARNG), and the Chief, Army Reserve (CAR). The guidance did not specify rank. It included that all eligible soldiers would receive five payments or until the year in which the soldiers reach their 60^th birthday, whichever occurs
first; soldiers otherwise eligible for the SSP, involuntarily separated for reasons other than unit inactivation, deactivation or reorganization will receive one payment; and soldiers involuntarily separated and otherwise eligible for SSP will receive one payment.

22. On 28 May 1996, a memorandum from the DCSPER, United States Army Reserve Command (USARC), advised all units and organizations, in effect, that any Selective Reserve member who would lose their paid drill position due to the inactivation/reorganization/relocation of their unit during the draw-down period may be eligible for the SRTB Program. The commands were directed to make every effort to assign soldiers to valid positions or allow entitlement to benefits if no valid assignment could be found.

23. On 13 April 1999, the DCSPER, USARC, advised the USARC Major Subordinate Commands that while the SRTB Program is approved through September 2001, there is a congressional mandate requiring soldiers to be kept in drilling positions. He also advised that since the USAR is under-strength, the plan was to place every soldier in a position and not pay transition benefits.

24. A 6 December 1999 memorandum from OCAR to the USARC emphasized that the SRTB Program would remain in effect through 30 September 2001. Members who were involuntarily separated from the Selected Reserve would remain eligible for those benefits in accordance with the published policy and compliance with the statutory requirements would be followed.



25. The SRTB Program was created in order to compensate soldiers of the Selected Reserve who were losing a paid drill position due to the drawdown of the Reserves. The effective dates of the program were 1 September 1991 to
31 December 2001. The priorities included assignment to any unit within commuting distance within authorized overstrength pending availability of a projected vacancy for a 1-year period. It was specified that generals were exempt from this program.

26. Entitlement to SSP included those members of the Selected Reserve who were involuntarily separated from the Selected Reserve, who qualified for non-regular retirement at age 60, but who were not yet age 60, and who voluntarily requested transfer to the Retired Reserve. Other specifications pertained to those offered positions in other units (those separated based on assignment as overstrength for a period of 1 year), subsequent qualification for retired pay at age 60, those already age 60, and those already qualified for pay or assistance under any other program. Those qualified for SSP would receive five annual payments or until the year in which they reach their 60^th birthday, whichever occurred first.

CONCLUSIONS:

1. The final decision to deactivate the 159^th CSG came in March 1999, and the 96^th RSC began removing command functions from the unit in July 1999 and completed the process by 30 September 1999. The 96^th RSC Commander made promises to soldiers of the 159^th that they would be taken care of.

2. The applicant received a command briefing on transition rights and benefits and was informed that he would either be placed into a valid position within the Helena area or be authorized transition benefits allowed by regulation. He also received a transition packet that stated that if a valid assignment was not available that he would receive separation pay for a five-year period and then retirement from the USAR program at age 60.

3. The applicant's packet was submitted on 2 October 1999, was recommended for approval on 6 November 1999, and was forwarded to the RSC in December 1999 for determination of eligibility and processing. His packet was mailed from the RSC to the USARC in March 2000 for a decision on paying benefits. His packet was held for 3 months and the RSC was unable to make a determination of eligibility. His packet was finally forwarded to the USARC with a recommendation of approval on 14 February 2000 and at that same time the 96^th RSC expedited the deactivation timeframe of the 159^th to April 2000. The 159^th CSG was given 6 ½ months transition period instead of the normal one-year period.


4. The 96^th RSC was pushed for a final decision on his transition packet and was finally told the first week of April 2000 that the decision by the USAR was to not pay any transition benefits. However, the applicant never received an official response in writing until 3 June 2000.

5. The decision was made by the USARC to double and triple slot him into the
652^nd ASG, which was based on erroneous strength data that claimed the unit was short and that they had valid slots. The USARC had used the 159^th CSG strength data instead of the 652^nd ASG data. He was later placed in an
overstrength position with an invalid assignment. An IG complaint was filed; however, no response was received.

6. Based on the evidence provided, the applicant was eligible for SSP/Retired Reserve when his unit was deactivated in April 2000 and his request was submitted in time. He was transferred to another geographically located unit as overstrength in order to assign him to an authorized position within 1 year.

7. The applicant has been assigned overstrength for over 1 year, had no valid mission, and could not be assigned a valid assignment within the USAR program. He has now completed over 25 years of qualifying service for retired pay at age 60.

8. The Board notes that the soldier was eligible for RSSP under the revised SRTB Program policy guidance and that eligible soldiers would received five payments or until the year in which they reach their 60^th birthday, which ever occurs first.

9. The Board also notes that the applicant has agreed to waive his first 2 years payments under the SSP for 2002 and 2003 since he has already received pay for unit training for those two years in excess of the amount he would receive under the annual SSP if approved.

10. In view of the foregoing evidence, the Board concludes the applicant is entitled to transfer to the Retired Reserve with award of RSSP based on injustice and inequity.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case for the individual concerned be corrected by:

a. by showing the individual concerned is eligible for Transfer to the Retired Reserve with Special Separation Pay under the SRTB Program;

b. by showing he requested and received approval for transfer from the Selected Reserve to the Retired Reserve with Special Separation Pay, effective 30 December 2001; and

c. by showing he was transferred from the Selected Reserve to the Retired Reserve with Special Separation Pay, effective 31 December 2001.

2. Since he has waived entitlement to the first 2 years payments under the SSP:

a. that he be allowed to retain the funds received and pay earned from 1 January 2002 to the actual date of transfer to the Retired Reserve; and

b. that he receive the three remaining RSSP payments on their due dates.

BOARD VOTE:

__ra___ __be___ __lb___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Roger W. Able___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002073499
SUFFIX
RECON
DATE BOARDED	20030710
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	283
2.
3.
4.
5.
6.