PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 19 June 2003
         DOCKET NUMBER: AR2002080749


         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. John N. Slone		Chairperson
Mr. William D. Powers		Member
Ms. Lana E. McGlynn		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 voided and that he be returned to the Retired Reserve for continued receipt of Voluntary Separation Incentive (VSI).

3. The applicant states that he understood that he was twice nonselected for promotion and was discharged. He moved from the last address listed with the Army Reserve Personnel Command (AR-PERSCOM), Transition and Separations Branch in April 1998. However, AR-PERSCOM failed to update his address even though the Defense Finance and Accounting Service (DFAS) had his correct address. He received his VSI payments regularly. Since 1998, to the best of his knowledge, he received no correspondence from AR-PERSCOM, Transition and Separations Branch. He recently moved again and updated his address with AR-PERSCOM. He also stated that he would never do anything to jeopardize his VSI payments.

4. The applicant's military records show he was commissioned as a second lieutenant in the Regular Army on 28 May 1986. He was promoted to captain (CPT/0-3) effective 1 November 1990. He was honorably released from active duty on 1 August 1995, under the provisions of Army Regulation 635-120, chapter 3, Early Release Program – VSI. He had a total of 9 years, 2 months, and 4 days of creditable service. Item 18 (Remarks) of his DD Form 214 states he would be paid VSI in the amount of $8,531.64 for 18 years. He was transferred to the USAR Control Group (Reinforcement) Individual Ready Reserve (IRR) in the pay grade of 0-3.

5. He was appointed as a Reserve officer in the rank of captain effective 2 August 1995. He was considered but not selected for promotion to major by the 1997 and 1998 Reserve Components Selection Boards (RCSB’s). The applicant's second nonselection memorandum is dated 24 September 1998 and states that he will be discharged in accordance with law not later than 1 March 1999 unless he is eligible for and requests transfer to the Retired Reserve. There was not a copy of this memorandum in his military records.

6. The applicant was honorably discharged from the USAR on 3 April 2001, under the provisions of Army Regulation 135-175, 2 years after his removal was required by law. His retirement point's summary shows that he did not earn any retirement points for Reserve participation from 2 August 1995 until his discharge on 3 April 2001.

7. Information provided by the DFAS revealed that his last VSI payment was received on 31 July 2002, in the amount of $7,943.44.




8. According to the Solder Management System (SMS), the applicant's retirement point's statement was returned due to a bad address on 21 September 2000. He was discharged on 3 April 2001 due to his two-time nonselection and for failure to maintain a valid address with AR-PERSCOM. A SMS entry on 3 April 2001 states that the applicant was a VSI recipient and should have been transferred to the Standby Reserve. On 23 August 2002, the applicant called and requested verification of his VSI. He was informed that he was unable to received VSI due to his discharge and bad address for "Options Letter." At this time, his address was updated and he was advised to apply to this Board for relief.

9. 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.

10. 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.

11. 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.


12. 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.

13. 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.

14. 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. Paragraph 4-4 pertains to the removal from an active status. It states, in pertinent part, that officers in the grade of first lieutenant, captain, or major, who completed their statutory military obligation, will be discharged for failure to be selected for promotion after second consideration by a DA Reserve Components Selection Board.

CONCLUSIONS:

1. The applicant was separated from active duty on 1 August 1995, under the VSI program and was to receive $8,531.64, a year for 18 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. He was properly considered for promotion by the 1997 and 1998 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 3 April 2001.

3. The applicant believed that he had provided a valid address as required by regulation. He requested verification of his VSI and was informed that he was discharged due to bad address for his "Options Letter." It appears that between September 2000 and August 2002 that he did not have a valid address on file. It was noted that his official address was not changed until 23 August 2002.

4. The Board notes that through possible administrative error, the applicant was not discharged for over 2 years beyond the date required by law. It is also likely that the applicant believed that he had provided an updated address to proper officials but, through possible administrative error, the new address was not properly recorded.

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 3 April 2001, 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 3 April 2001, honorable discharge null and void;

b. by reissuing orders showing that he was transferred to the Retired Reserve effective 3 April 2001; and

         c. by restoring his entitlement to annual VSI payments.

BOARD VOTE:

__js____ __wp____ __lm___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __John N. Slone___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002080749
SUFFIX
RECON
DATE BOARDED	20030619
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20020403
DISCHARGE AUTHORITY	AR 135-175
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	338
2.
3.
4.
5.
6.