PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 23 January 2003
         DOCKET NUMBER: AR2002078691


         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:

Ms. Kathleen A. Newman		Chairperson
Ms. Gail J. Wire		Member
Mr. Patrick H. McGarthy, Jr.		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 his discharge from the United States Army Reserve (USAR) be voided and that he instead be placed in the Retired Reserve to allow for continued payment of his earned Voluntary Separation Incentive (VSI) benefits.

3. The applicant states, in effect, that he was released from active duty
(REFRAD) in 1993 with an annual VSI benefit of $10,800.92 for 22 years. He claims that he would not have forfeited this benefit had he been properly counseled on his options as a VSI recipient when he was processed for mandatory separation from an active USAR status after twice being non-selected for promotion. He states that in May 2001, he received notification that he was a second time non-select for promotion to lieutenant colonel (LTC). Prior to that notification, he was serving in the 91^st Division (Training Support) of the active USAR.

4. The applicant states that he received an Election of Options form with four possible choices from the Army Reserve Personnel Command (ARPERSCOM). The only option that appeared available to him based on the qualification explanations contained on the form was to be discharged from the USAR. The explanation that accompanied the transfer to Retired Reserve option was that it was available to members who had a minimum of 20 qualifying years of service for retired pay. Based on this eligibility explanation, and because he had only completed 15 years of qualifying service, he concluded he was not eligible for this option at that time. The form he received contained no explanation that he would forfeit VSI benefits as a result of being discharged or that he had the option to transfer to the Retired Reserve and continue to receive annual VSI payments. He claims that he was unaware that there was a problem with his VSI benefits until he did not receive his annual payment on 1 August 2002. He further states that the loss of this benefit will place a severe financial burden on his family. He concludes by requesting that these factors be considered and that his records be corrected in order to allow him to continue to receive his earned VSI benefits.

5. The applicant’s military records show that on 22 August 1982, he was ordered to active duty in the rank of 2LT. He continuously served on active duty for
10 years, 11 months, and 10 days until 1 August 1993, at which time he was honorably separated, in the rank of captain (CPT), and transferred to the USAR Control Group (Reinf), St. Louis, Missouri.

6. The separation document (DD Form 214) issued to the applicant on the date of his separation, 1 August 1993, shows that he was honorably separated under the provisions of chapter 3, Army Regulation 635-100, by reason of the Early Separation Program-VSI. The remarks section of this form confirms that the applicant was authorized annual VSI payments of $10,800.90 for 22 years.

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7. The record also includes Order Number 111-00213, dated 21 April 1993, issued by the United States Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, which directed the applicant’s reassignment to the Transition Point for transition processing. This document authorized his separation on 1 August 1993, and his reassignment to the USAR Control Group (Reinf). The additional instructions portion of this order indicated that the applicant was authorized VSI and that his VSI USAR commitment would end on 1 August 2015.

8. In May of 2001, the applicant was notified of his second non-selection for promotion to LTC, and that as a result, his mandatory removal from an active USAR status was required. The applicant was provided and completed an Election of Options form, in which he elected to be discharged. This form contained no explanation on the impact that any specific option election would have on VSI benefits. Further, the option to transfer to the Retired Reserve contained on this form had with it an explanation of eligibility. This explanation indicated that only members who had completed a minimum of 20 qualifying years of service for retired pay were eligible to elect the Retired Reserve option.

9. Orders Number D-10-148625 was published by the Army Reserve Personnel Command (ARPERSCOM) on 18 October 2001, which discharged the applicant from the USAR effective 1 October 2001.

10. In connection with the processing of this case, an advisory opinion was requested from ARPERSCOM personnel officials. Two staff members of the Transition and Separations Branch provided opinions on the case. The first indicated that subsequent to his second non-selection for promotion, which required removal action, the applicant elected to be discharged from the USAR. As a result of his selection of the discharge option, valid discharge orders were published, and ARPERSCOM does not have the authority to revoke those orders. This staff member further stated that although proper procedures were followed, this Board should direct that the discharge orders be revoked and allow the applicant to transfer to the Retired Reserve so that he may continue to receive VSI benefits.

11. The staff member who prepared the second advisory opinion indicated that all procedures were followed and the applicant requested he be discharged from the USAR, and it was only after he failed to receive his VSI payment that he realized his error. This staff member opines that justice, equity, the law, and regulation have been properly served in this case, and no further action is necessary. This official further states that the applicant was granted what he requested; however, if the Board wishes to have mercy, they should direct the discharge orders be revoked and that the applicant be mandatorily transferred to the Retired Reserve.

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12. The applicant was provided copies of both ARPERSCOM advisory opinions in order to have the opportunity to respond, which he did on 3 December 2002. In his rebuttal, the applicant states that the Election of Options form he received did not have critical information that allowed him, as a VSI recipient, to make an informed decision regarding his future Reserve status as a two time non-select for promotion. As a result, the process was not just and equitable, and the intent of the law and regulation were not met, as is asserted in one of the advisory opinions. He further states that the option election form provided him did not adequately explain his options and their ramifications on him as a VSI recipient, and made it appear that the only option available to him was discharge.

13. The applicant also included two ARPERSCOM forms that are now provided to members in connection with the mandatory removal process. These forms do contain information on the impact of elections and on the option to transfer to the Retired Reserve for VSI recipients. He states that had he received these new forms now being used by ARPERSCOM, he clearly would have selected the Retired Reserve option. Further, the revision of these forms by ARPERSCOM confirms that the earlier version of these documents did not adequately address the rights and ramifications on VSI recipients, which he presumes impacted many VSI recipients who faced circumstances similar to his.

14. 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 voluntary separated members. The VSI was one of the monetary benefits associated with this incentive program.

15. The voluntary incentive program was designed to support the Army’s drawdown. Headquarters, Department of the Army (DA) Message 281802Z, dated in January 1992, clarified issues associated with the VSI 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. 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. In these cases, the member would be transferred to the Standby Reserve or the Retired Reserve.

CONCLUSIONS:

1. The Board notes the applicant’s contention that he was not properly counseled on the impact his discharge option election would have on his VSI benefit entitlement, and that the form he was provided led him to believe that his only option was discharge, and it finds these claims have merit.
2. The Board does not argue with the assertions of ARPERSCOM officials that the applicant’s discharge order is valid based on the discharge option election he made in connection with his mandatory removal from an active USAR status. However, the Board does not agree that this is the decisive factor in this case.

3. It is clear the Election of Options form provided to and completed by the applicant contained no information on the impact his decision would have on his future VSI benefits. Further, there is no evidence to show that the applicant was ever adequately counseled on this matter by any ARPERSCOM official or in any communications to him during his mandatory removal processing.

4. The Board also agrees with the applicant’s assertion that the Election of Options form he was provided gave the impression that only members who had completed a minimum of 20 years of qualifying service for retired pay were eligible to transfer to the Retired Reserve, and that his only option was discharge. This contention is further supported by the fact that ARPERSCOM personnel officials ultimately revised the Election of Options form to include information on the impact an option election would have on VSI benefits, and clarifying that VSI recipients were eligible to transfer to the Retired Reserve.

5. The evidence of record shows that as soon as the applicant failed to receive his annual VSI payment, he attempted to resolve the situation through ARPERSCOM by having his discharge voided and by expressing his willingness to continue to remain affiliated with the USAR.

6. The applicant’s record confirms that he served honorably on active duty for almost 11 years and that he was entitled to the VSI payments for 22 years upon his separation from active duty in 1993. Lacking hard evidence to the contrary, the Board finds it unreasonable to believe that he or any other individual would voluntarily accept a discharge from the USAR Ready Reserve knowing that such an action would suspend his earned annual VSI payments.

7. In the opinion of the Board, it would be unjust to hold the applicant to a decision he made, which ultimately impacted his eligibility to continue to receive his VSI payments, knowing that he made that decision without full knowledge of the consequences. Therefore, the Board concludes that it would be in the interest of justice to void applicant’s discharge from the USAR, transfer him to the Retired Reserve, and reinstate his VSI payments accordingly.

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

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by voiding the 1 October 2001 USAR discharge of the individual concerned, and by showing that he was instead transferred to the Retired Reserve on that same date; by restoring his entitlement to annual VSI payments; and by authorizing him retroactive payment of any lost VSI payments which resulted from his discharge from the USAR.

BOARD VOTE:

__KAN__ __GJW _ __PHM __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  __Kathleen A. Newman___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002078691
SUFFIX
RECON
DATE BOARDED	2003/01/23
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1993/10/01
DISCHARGE AUTHORITY	AR
DISCHARGE REASON	Two Time Non-Select for Promotion
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 304	129.0200
2. 283	128.0000
3.
4.
5.
6.