PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 24 June 2003
         DOCKET NUMBER: AR2002076662


         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. Antoinette Farley		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Ronald E. Blakely		Member
Mr. Frank C. Jones, II		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 he be reinstated in the Retired Reserve as a Voluntary Separation Incentive (VSI) recipient, with a full entitlement to receive retroactive payments.

3. The applicant states that he was discharged from the Individual Ready Reserve on 1 July 1992 and is no longer eligible for any annual VSI payments. A representative of the Army Reserve Personnel Command (AR-PERSCOM) Office of Promotions, Reserve Components, St. Louis, Missouri, stated that two notifications of non-selection for major were sent to him at the address in his military file. He explained to the representative that he received a promotion within his company and moved in May 2000 to a new address and again in January 2002 to his current address. He acknowledged that in making these moves he neglected to keep his addresses current with AR-PERSCOM and as a result never received the two notifications. He adds that he did receive a VSI payment last year (#10 of 22 annual payments), but had no idea of any pending problems with respect to his future payments. He states that the remaining payments are crucial for his family to fund his children’s college accounts. He has now updated his file at AR-PERSCOM, but further iterates that the fault is his and that he regrets the oversight.

4. The applicant’s military records are not complete; however, the available records show that he was born on 18 February 1959. He entered active duty on 10 June 1981 and was discharged under the Early Release Program – VSI on
1 July 1992. He completed 11 years and 22 days of creditable active service in the rank of captain (03). His request for early release is not available.

5. However, his DD Form 214 (Certificate of Release or Discharge from
Active Duty) indicates that he would receive 22 annual VSI payments of $9,925.08 each. He was then transferred to the USAR Control Group (Reinforcement), Ready Reserve.

6. In the processing of this case an advisory opinion was provided by
AR-PERSCOM, dated 28 May 2003. The opinion confirmed that the applicant was discharged on 4 September 2001 for failure to respond to official correspondence and to maintain a current address with the Army Reserve in accordance with Title 10 USC 14506. AR-PERSCOM at the time of the applicant’s separation did not have the authority to automatically transfer the soldier to the Retired Reserve without completion of the option letter. However, under Public Law 107-107, dated 28 December 2001, which modified Title
10 USC 14513, it would now allow the transfer of a soldier to the Retired Reserve without submitting a request if qualified. Soldiers may request not to be transferred to the retired reserve and be subsequently discharged. In addition, AR-PERSCOM now directs the transfer of soldiers to the Retired Reserve who meets the qualifications (20 year letter) and VSI recipients if they can be properly identified. The opinion points out that they have no authority to revoke the discharge order, that the discharge was done properly based on the law in effect at the time based on the soldier failing to maintain a valid address as required by regulation. However, AR-PERSCOM, finds no objection to the applicant’s restoration of VSI payments if so directed. On 4 June 2003, the applicant concurred with the advisory opinion.

7. 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.
 
8. 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 draw down. 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.

9. Army Regulation 135-175, Section II, Reserve Component (Discharge Criteria), paragraph 4-4, provides that officers in the Army Reserve will be removed from an active status, with or without their consent, regardless of the length of commissioned service when not-selected for promotion after second consideration by the Department of the Army Reserve Components selection board for the grades of first lieutenant, captain or major. Removal will be by discharge, transfer to the Retired Reserve (if eligible and requested by the member) or, if eligible, transfer to Control Group (Inactive).

10. Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.


Paragraph 7-4 requires removal of officers who are twice not selected for promotion to chief warrant officer three, chief warrant officer four, captain, major,
or lieutenant colonel.
 
11. 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.

12. Public Law 107-107, enacted 28 December 2001, modified Title 10, U.S. Code section 14513 and now allows the transfer of a soldier to the Retired Reserve without submitting a request to AR-PERSCOM to qualify. However, soldiers still may request not to be transferred to the Retired Reserve and be subsequently discharged.

CONCLUSIONS:

1. The Board notes that the applicant acknowledged, when moving his family to other states due to employment opportunities, he neglected to keep his addresses current with AR-PERSCOM. As a result he never received the non-selection for promotion notifications, which led to his discharge from the Ready Reserve.

2. However, the Board also concludes that it is reasonable to believe that if the applicant received notification of being nonslected for promotion that he would have requested to be transferred to the Retired Reserve, with the continuation of his 12 remaining VSI payments.

3. Although the applicant was properly discharged in accordance with the regulation, set forth at the time, the Board also notes that the applicant is
only 44 years old. It would be in the Government’s interest to transfer him to the Retired Reserve where he could be a mobilization asset for a reasonable length of time to come.

4. Therefore, it would now be appropriate, as a matter of fairness and equity, to revoke his honorable discharge and allow him to be transferred to the Retired Reserve effective 4 September 2001, that his VSI payments be resumed, and that any annual payments which were lost as a result of his separation be paid retroactively.

5. In view of the foregoing, findings and conclusions, correcting the applicant’s records as recommended below would correct an error or rectify an injustice.

RECOMMENDATION:

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

         a. by revoking AR-PERSCOM orders D-09-142284, dated 5 September 2001, which discharged the applicant effective 4 September 2001;

         b. by issuing orders showing that he was transferred to the Retired Reserve effective 4 September 2001;

c.       by restoring the applicant’s entitlement to annual VSI payments; and

d.       by retroactively paying to the applicant any lost VSI payments which
resulted from the separation action.

BOARD VOTE:

_MKP___ __REB___ __FCJ__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  Margaret K. Patterson
                  CHAIRPERSON

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INDEX

CASE ID	AR2002076662
SUFFIX
RECON
DATE BOARDED	20030624
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY	. . . .
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	A128.0000
2.	A128.1400
3.	A136.0300
4.
5.
6.