PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 26 June 2003
         DOCKET NUMBER: AR2002079849


         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. Walter T. Morrison		Chairperson
Mr. Lawrence Foster		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, in effect, that his discharge be voided and that he be returned to the Retired Reserve for continued receipt of Voluntary Separation Incentive (VSI).

3. The applicant states that he called the Defense Finance and Accounting Service (DFAS) to inquire about his VSI payment. He was informed that there was no reason why he should have not received his annual payment on 1 September 2002. He was also informed that they would query his request and to call back. He returned their call and was informed to call the Army Reserve Personnel Command (AR-PERSCOM). AR-PERSCOM informed him the he had been discharged effective 22 June 2001 and would not receive future VSI payments. He was informed that the reason for his discharge was lost contact and failure to respond to previous written forms of communication.

4. He states that shortly after his promotion to major in January 1996, he explained to AR-PERSCOM, that he was forced to resign from his troop program unit (TPU) due to his civilian job transfer to Chester, England for a duration of 3 years. After a year in country, he became increasingly concerned that if he were called to active duty (AD), he would have no contact in order to relay his address and phone number. He informed AR-PERSCOM of this information and immediately began receiving the Army Reserve magazine, but no correspondence indicating issues concerning eligibility for promotion or possible discharge from the Individual Ready Reserve (IRR), at his new address.

5. He goes on to state that in June 2000, his employer transferred him to Camden, Maine. He provided a forwarding address prior to his departure from England. Less than a year later, he was transferred again to Wilmington, Delaware. At no time, during his time in Maine did he ever receive any written correspondence indicating his impending discharge from the IRR or ineligibility for VSI. While in Maine, he received his annual VSI payment in September 2000, at his present address. After explaining the situation to AR-PERSCOM, he indicated there was no address located on the address field on his computer, but he did have a contact phone number that was his work number that he left with DFAS in June 1997. DFAS forwarded his new telephone number and address to AR-PERSCOM.

6. He explained to AR-PERSCOM that in no way would he have ever remotely consider to be discharged which would forfeit his future VSI payments. Without his VSI, his financial ability to provide for his family was at risk. He concludes by requesting that his discharge be voided and that he be transferred to the Retired Reserve as a two-time passover for the purpose of drawing his annual VSI benefits.



7. The applicant's military records show he was commissioned as a second lieutenant in the US Army Reserve (USAR) on 24 May 1981. He was ordered to active duty (AD) on 17 January 1982. He was promoted to captain (CPT/0-3) effective 1 September 1985. He was honorably released from active duty on 1 September 1992, under the provisions of Army Regulation 635-100, chapter 3, Early Transition Program - VSI. He had a total of 10 years, 7 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 $9,548.81 for 20 years. He was transferred to the USAR Control Group (Reinforcement) Individual Ready Reserve (IRR) in the pay grade of 0-3.

8. He was transferred the 304^th Civil Affairs (CA) Brigade, a TPU, effective 15 July 1994.

9. He was promoted as a Reserve officer in the rank of major effective 7 December 1994.

10. He was released from the 30^th CA Brigade effective 1 December 1995.

11. He was considered but not selected for promotion to lieutenant colonel by the 1999 and 2000 Reserve Component Selection Boards (RCSB’s).

12. The applicant was honorably discharged from the USAR on 22 June 2001, under the provisions of Army Regulation 135-175. His retirement point's summary shows that during the last 5 years he did not earn any retirement points for Reserve participation.

13. The applicant provided a copy of his DFAS-CL Form 1900/8 (VSI Earning Statement), which shows his last VSI payment was received on 1 September 2000, in the amount of $10,150.31

14. According to the Soldier Management System (SMS), the applicant received a request for physical with address change. At that time, his address and phone number was updated. A two-time nonselection letter and separation orders were mailed to the applicant; however, his separation orders were returned. On 13 September 2002, the applicant updated his address and phone number. On that same day, he inquired about his VSI and was informed that he had been discharged and was no longer eligible for VSI. He was informed that AR-PERSCOM had a bad address and had not heard from him. He stated that he had been in contact, was stationed in England, and had called and given his address and overseas phone number. His entry for 1997 does confirm; however, his address was blank. His appeal options were discussed and he was informed to apply to this Board for relief. On 23 September 2002, his address and phone number once again was updated.

15. In the processing of this case an advisory opinion was provided by the
AR-PERSCOM, Transitions and Separations Program Manager. AR-PERSCOM stated that Public Law and the implementing instructions of the Department of Defense (DOD) Financial Management Regulation, Volume 7A, Chapter 35, requires that individuals receiving VSI "must continue to serve in a Reserve Component for the entire period of eligibility for VSI" unless the member's "transfer is required by reason of failure of selection for promotion." If an in individual is twice non-selected for promotion, they must be eliminated. VSI recipients are sent a letter requesting their choice of discharge, or transfer to the Retired Reserve. If they transfer to the Retired Reserve, payments may continue. If they fail to respond, they are discharged and VSI payments are discontinued.

16. The applicant was twice non-selected for promotion and there was no response to his Options Notification Letter. The applicant contacted AR-PERSCOM after non-receipt of his VSI payment and was informed that he had been discharged for non-response to a two-time non-select letter. Under normal circumstances, his discharge and termination would stand. AR-PERSCOM complied with law by implementing guidance. It is the soldier's responsibility to keep his command apprised of his address.

17. In this case, given the number of moves the applicant made, particularly those at various overseas addresses, it was recommended that relief be granted. AR-PERSCOM recommended that the applicant's discharge be voided, that he be placed in the Retired Reserve, and that his VSI payments be restored.

18. The applicant was provided a copy of the favorable opinion for possible comment prior to consideration of his case. The applicant responded within the timeframe allotted and concurred on 31 January 2003.

19. 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.





20. 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.

21. Title 10, United States Code (USC), section 14506, states that an officer in the grade of major who twice fails to be selected for promotion to lieutenant colonel will be separated no later than the first day of the month after the month in which the officer completes 20 years of commissioned service.

22. Effective 1 July 2002, Title 10, section 14513 was amended to allow for the automatic transfer to the Retired Reserve of Reserve Component officers whose removal from an active status was required for failure of selection for promotion. Only in those cases where the officer requests not to be transferred to the Retired Reserve will the officer be discharged.

23. Army Regulation 135-133 (Ready Reserve Screening, Qualification Records Systems, and Change of Address Reports), paragraph 4-3, states that each soldier must furnish a permanent home address (home of record). When away from that permanent address for more than a month, the solider will provide a temporary address. USAR personnel on appointment, enlistment, reenlistment after break in service, or on transfer to the USAR may report their address change by use of any official form. A letter to the unit commander or the Commander, AR-PERSCOM, as appropriate, will satisfy this requirement.

CONCLUSIONS:

1. The applicant was separated from active duty on 1 September 1992, under the VSI program and was to receive $9,548.81, a year for 20 years. A condition of receiving the VSI payments was to remain in the Ready Reserve.



2. The applicant was assigned to the IRR as a CPT/0-3 and was later transferred to a TPU. He was promoted to the rank of major effective 7 December 1994. He was properly considered for promotion by the 1999 and 2000 RCSB’s. He was not selected for promotion and was subsequently removed from the Ready Reserve based on his nonselections. He was honorably discharged on 22 June 2001.

3. The applicant provided a valid address and phone number as required by regulation. He was later mailed a two-time nonselection letter and separation orders. However, his separation orders were returned. He later updated his address and phone number and inquired about his VSI. He was informed that he was discharged and was no longer eligible for VSI. He was informed that he had a bad address and that AR-PERSCOM had not heard from him. His only recourse now was to apply to this Board for relief.

4. The Board notes that AR-PERSCOM complied with law by implementing guidance and that it was the applicant's responsibility to keep his command apprised of his address. It is also likely that had the applicant provided an updated address during each move to proper officials, he would have promptly received the required correspondence through mail to continue his VSI payments.

5. The Board believes that it would be in the interest of justice to give the applicant the benefit of the doubt and it would now be appropriate, as a matter of fairness and equity, to revoke his honorable discharge, to transfer him to the Retired Reserve effective 22 June 2001, provide his VSI Payments for 2001 and 2002, and to resume his VSI payments. Transfer to the Retired Reserve for failure of selection for promotion has been automatic since 1 July 2002.

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 for the individual concerned be corrected:

         a. by declaring the applicant's 22 June 2001, honorable discharge null and void;

b. by reissuing orders showing that he was transferred to the Retired Reserve effective 22 June 2001;



         c. providing him VSI payments for 2001 and 2002; and

         d. by restoring his entitlement to annual VSI payments.

BOARD VOTE:

__wm___ __lf___ __le____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Walter T. Morrison
                  CHAIRPERSON

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INDEX

CASE ID	AR2002079849
SUFFIX
RECON
DATE BOARDED	20030626
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20010619
DISCHARGE AUTHORITY	AR 135-175
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	338
2.
3.
4.
5.
6.