PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 20 February 2003
         DOCKET NUMBER: AR2002075338


         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. Joann Langston		Chairperson
Mr. Allen L. Raub		Member
Mr. Lester Echols		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 revoked, that he be returned to a Ready Reserve status, and that his Voluntary Separation Incentive (VSI) payments be reinstated.

3. The applicant states that he mistakenly signed Part D (Officers only, Request for Resignation) of his ARPC Form 3725-E (Army Reserve Status and Address Verification), stating that he had completed his statutory obligation and wished to resign, which was incorrect. He meant to indorse Part C, section 11 (Certification of Physical Condition), which states "My signature below certifies that the information provided on the front and back of this form is true and correct to the best of his knowledge" which was his error. He understands that he must maintain a Reserve status to receive his yearly VSI payments. He would have never purposely jeopardized this agreement nor his obligation to his country. In support of his application, he submits copies of his: DD Form 214 (Certificate of Release or Discharge from Active Duty); an ARPC Form 249-2-E (Chronological Statement of Retirement Points); separation orders; two ARPC Forms 3725-E, dated 7 January 1999 and July 2000; two memorandums; an ARPC Form 4064 (Election of Options); and four DFAS-CL Forms 1900/8 (VSI Earning Statement).

4. The applicant’s military records show he was commissioned as a second lieutenant on 17 May 1985, in the Field Artillery branch. He was promoted to the rank of captain/0-3 on 1 September 1989.

5. He continued to serve until he was honorably released from active duty on 1 August 1994, under the provision of Army Regulation 635-120, chapter 3, Early Release Program - VSI. He had a total of 9 years, 2 months, and 15 days of creditable service. Item 18 (Remarks) of his DD Form 214 states he would be paid VSI in the amount of $8,319.03 for 18 years. He was transferred to the USAR Control Group (Reinforcement) Individual Ready Reserve (IRR) in the pay grade of 0-3.

6. On 1 August 1994, he was appointed as a captain in the USAR.

7. The applicant provided a copy of his ARPC Form 3725, dated 7 January 1999, which verified his Reserve status, current address, and physical condition. He completed Parts A and B of the form and signed and dated in Part D. Part D states that it is for officers only requesting resignation. Directly above the signature line is the entry "As an officer who has completed my 8 years statutory obligation, I hereby tender my resignation."

8. On 7 January 1999, the Army Reserve Personnel Command (AR-PERSCOM), Deputy Chief of Staff for Plans, prepared a memorandum to the applicant. He was informed that a decision had to be made regarding his career and that a response was needed in writing. His release from the Active Army did not relieve him from his statutory requirements as an officer in the IRR. An election of options letter was attached for the applicant to review and elect an option that was most appropriate to him. Failure to respond to this memorandum would result in adverse action that could include a less than honorable involuntary separation from the USAR.

9. On 25 January 1999 the applicant elected to be transferred to the Retired Reserve, in order to maintain his Reserve affiliation and VSI status.

10. On 2 August 1999, the AR-PERSCOM, Director, Personnel Actions and Services, prepared a memorandum to the applicant. He was informed in a previous memorandum that he was not a deployable asset and was offered the option of either separating from the IRR or becoming qualified as a mobilization asset, to include meeting participation requirements. He was also informed of the requirements in order to continue to receive his VSI payments. He elected transfer to the Retired Reserve. However, VSI recipients who voluntary request transfer as a result of that memorandum would, in fact, forfeit their VSI. This request for transfer submitted as a result of the memorandum was being returned without action.

11. The applicant was provided another copy of ARPC Form 3725-E. Part D shows that he elected to tender his resignation on 31 July 2000, which the applicant states was his error.

12. The applicant provided several copies of his DFAS-CL Form 1900/8, which shows that his last VSI payment was received on 1 August 2000.

13. The applicant provided a copy of AR-PERSCOM Orders D-09-049812 dated 12 September 2000, which show that he was honorably discharged from the US Army Control Group (Reinforcement) effective 12 September 2000, under the provisions of Army Regulation 135-175. The order states "all Reserve of the Army and Army of the United States appts (appointments) are terminated."

14. The applicant provided a copy of his Chronological Statement of Retirement Points, dated 29 March 2002, which shows his yearly retirement points from 1994 to 2000 and shows that he has continuous Reserve affiliation.

15. 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.

16. 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. Chapter 6 prescribes procedures and format for resignations submitted by Reserve officers. Voluntary requests for resignation under this regulation may be accepted from members who are mentally competent at the time of their request.

17. 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-selection for promotion, medical disability, age, or other
involuntary reasons.

18. Army policy and the Department of Defense Military Pay and Allowances Entitlements Manual (DODPM), based on Public Law 102-190, dated 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 separated from active duty on 1 August 1994, under the VSI program and was to receive $8,319.03 a year for 18 years. A condition of receiving the VSI payments was to remain in the Ready Reserve.

2. The applicant has presented evidence in support of his request for revoking his orders, return to a Ready Reserve status, and VSI reinstatement.

3. The Board notes that the applicant voluntarily elected transfer to the Retired Reserve, as a VSI recipient, and as a result forfeited his VSI. He was provided another opportunity to correct his error and elected to tender his resignation, which was an error, and he was honorably discharged.

4. The Board also notes that it is unreasonable to believe that an individual would tender his voluntary resignation knowing that such an action would terminate his annual VSI annuity payments.

5. The Board contends that in view of the circumstances, and in the interest of justice, the applicant’s status in the Individual Ready Reserve should be restored by voiding his honorable discharge of 12 September 2000, that his VSI payments be resumed, and that any annual payments which were lost as a result of his separation be paid retroactively.

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 for the individual concerned:

         a. by declaring the applicant's 12 September 2000, honorable discharge null and void;

         b. by reinstating the applicant in the Individual Ready Reserve in the grade of captain without any loss of creditable service;

         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:

__jl___ __ar____ ___le_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Joann Langston____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002075338
SUFFIX
RECON
DATE BOARDED	20030220
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20000912
DISCHARGE AUTHORITY	AR 135-175
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	344
2.
3.
4.
5.
6.