RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 July 2007
	DOCKET NUMBER:  AR20060014519 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Susan A. Powers

Member

Mr. Edward E. Montgomery

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, revocation of the orders transferring him to the Retired Reserve and reinstatement to either the Army National Guard (ARNG) or U.S. Army Reserve (USAR) Individual Ready Reserve (IRR) without loss of Federal recognition, reserve retirement point credit retroactive to the date of his transfer to the Retired Reserve, and restoration of his Voluntary Separation Incentive (VSI) pay.

2.  The applicant states, in effect, he is eligible for VSI pay in the amount of $16,305.00 until 31 August 2024 based upon his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 31 August 1994.  He also states, in effect, it was his understanding that he was accessible for recall which, in turn, kept him eligible for his VSI.  He further states, in effect, that Headquarters, Joint Forces, Alaska ARNG failed to properly inform him of the VSI requirements, therefore he applied for Retired Reserve status not knowing that he was forfeiting his right to the VSI.  The applicant concludes by stating that the annual VSI payment is part of his planned budget for his family to subsist on.

3.  The applicant provides a copy of his DD Form 214, with an effective date of 31 August 1994 and National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), with an effective date of 30 June 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military service records show that he was born on 30 March 1949 and enlisted in the Regular Army on 19 February 1969.  He attended Warrant Officer Candidate training at Fort Rucker, Alabama and was honorably discharged on 22 February 1970 to accept appointment as a warrant officer.  On 23 February 1970, the applicant was appointed as a USAR warrant officer and entered active duty in military occupational specialty (MOS) 100B (Rotary Wing Pilot).  On 17 April 1972, he was honorably released from active duty (REFRAD), in the rank of chief warrant officer two (CW2)/pay grade W-2, and transferred to the USAR Control Group (Reinforcement).  At the time he had completed a total of 3 years, 5 months, and 6 days active service. 

2.  On 9 June 1972, the applicant was administered the oath of office, appointed, and granted Federal recognition in the Alaska ARNG (AKARNG) in the rank of CW2.  On 4 November 1977, he transferred to the ARNG Inactive National Guard (ING) and, on 4 November 1978, he transferred to the USAR Control Group (Reinforcement) where he served until 1 September 1981.
3.  On 2 September 1981, the applicant transferred to the ARNG.  He entered the Active/Guard Reserve (AGR) program on 26 May 1985, served on active duty until 31 August 1994, and transferred to the AKARNG on 1 September 1994.

4.  The applicant’s military service records contain a copy of Headquarters, Departments of the Army and the Air Force, AKARNG Element Joint Forces Headquarters, Fort Richardson, Alaska, Orders 136-003, dated 16 May 2005.  
These orders show that the applicant was honorably discharged from the AKARNG, in the rank of chief warrant office five (CW5)/pay grade W-5, on
30 June 2005, and transferred to the USAR Control Group (Retired Reserve), effective 1 July 2005.  These orders also show that the authority for this action was NGR (AR) 635-100, paragraph 4-13(c), completion of thirty years of service.

5.  The applicant’s military service records contain a NGB Form 22, with an effective date of 30 June 2005.  This document shows, in pertinent part, that the applicant was honorably discharged from the AKARNG, in the rank of CW5/W-5, on 30 June 2005 and transferred to the USAR Control Group (Retired Reserve), effective 1 July 2005.  Item 6 (Date of Rank) of this document contains the entry, “971212 (i.e., 12 December 1997) and Item 23 (Authority and Reason) contains the entry, “NGR (AR) 635-100, PARA 4-13(c), COMPLETION OF THIRTY YEARS OF SERVICE.”  This document also shows the applicant had completed 36 years, 2 months, and 12 days total service for pay and 32 years, 4 months, and 13 days total service for retired pay.

6.  The applicant’s military service records contain a copy of Headquarters, Departments of the Army and the Air Force, National Guard Bureau, Washington, DC, Special Orders Number 223 AR, dated 2 August 2005.  These orders show, in pertinent part, that the applicant’s Federal recognition status in the ARNG was withdrawn, effective 30 June 2005, and that he was transferred to the USAR Retired Reserve.

7.  In support of his application, the applicant provides a copy of his DD Form 214, with an effective date of 31 August 1994 and NGB Form 22, with an effective date of 30 June 2005.  The DD Form 214 shows, in pertinent part, that the applicant was honorably discharged from the ARNG, in the rank of chief warrant office four (CW4)/pay grade W-4, on 31 August 1994, and transferred to The Adjutant General, Alaska, Fort Richardson, Alaska, effective 1 September 1994.  Item 25 (Separation Authority) shows he was discharged under the authority of Army Regulation 635-100, Chapter 3, Section XVI.”  Item 28 (Narrative Reason for Separation) contains the entry, “EARLY RELEASE PROGRAM – VOLUNTARY SEPARATION INCENTIVE.”  Item 18 (Remarks), in pertinent part, contains the entry, “//VSI PAYMENT: $15,866.46 for 30.16 years//.”  This document also shows the applicant completed 9 years, 3 months, and 5 days net active service this period; 3 years, 1 month, and 29 days total prior active service (which equates to 12 years, 5 months, and 4 days total active service); and 12 years, 1 month, and 8 days total prior inactive service.

8.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau, Arlington, Virginia, who recommended disapproval of the applicant's request.  The NGB advisory opinion recommendation is based on the fact that the applicant reached his maximum time in service (i.e., 30 years) at the time of his retirement.

9.  The applicant was provided a copy of the Chief, Personnel Division, National Guard Bureau, advisory opinion in order to have the opportunity to respond to its contents.  To date, the applicant has failed to provide a response.

10.  Public Law 102-190 (Voluntary Separation Incentive) states, in pertinent part, that the program is offered to certain mid-career service members of the Armed Forces in over-strength career fields to encourage the service members to leave active duty voluntarily.

11.  Army Regulation 635-100 (Personnel Separations – Officer Personnel), in effect at the time of the applicant’s discharge on 31 August 1994, provides policies and procedures for separating officers from active duty and applied to all Regular Army officer personnel and Reserve Component officer personnel on active duty.  Chapter 3 (Release from Active Duty of Non-Regular Commissioned and Warrant Officers), Section XVI (Voluntary Release from Active Duty), of the Officer Separations regulation provides, in pertinent part, that an officer may, if eligible under conditions prescribed, submit an application for release from active duty whenever such action is considered appropriate.

12.  Department of Defense Financial Management Regulation (FMR) 7000.14-R (available via the Internet @ http://www.defenselink.mil/comptroller/fmr/) provides statutory provisions for entitlement, deductions, and collections, and establishes Department of Defense (DoD) policy on the pay and allowances of military personnel.  Chapter 35 (Separation Payments), paragraph 3508 (Voluntary Separation Incentive), subparagraph 350801 (Entitlement), provides that a member who separates voluntarily from Military Service before 1 October 1999, may, under certain conditions prescribed by the Secretary of the Military Department concerned, elect to receive a VSI.  This subparagraph also provides, in pertinent part, that the member must accept voluntary appointment or enlistment in, or transfer 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 (emphasis added).

13.  National Guard Regulation (NGR) 635-100 (Personnel Separations -Termination of appointment and Withdrawal of Federal Recognition) prescribes the policies, criteria, and procedures governing the separation of officers of the ARNG.  This Personnel Separations regulation provides guidance on the termination of State appointment upon completion of maximum service and, in pertinent part, states that officers in the grade of CW5, who are not earlier removed from an active status, will be removed from an active status in the ARNG of the United States on the date that is 30 days after completion of
30 total years of service or on the fifth anniversary of the officer’s date of appointment in that grade.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the orders transferring him to the Retired Reserve should be revoked and he should be reinstated into either the ARNG or USAR IRR without loss of Federal recognition, he should be credited with reserve retirement points retroactive to the date of his transfer to the Retired Reserve, and his VSI pay should be restored because he was not properly informed of the VSI requirements.

2.  The evidence of record shows that the applicant was discharged under the provisions of the Early Release Program (VSI) on 31 August 1994.  The evidence of record also shows that in order for a member to be entitled to VSI pay, the member must accept voluntary appointment or transfer 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.  The evidence of record further shows that the applicant satisfied this requirement, subsequent to his discharge on 31 August 1994, when he transferred to the AKARNG on 1 September 1994 and continued to serve in the AKARNG.  Thus, it is reasonable to assume that the applicant was properly advised and aware of VSI entitlement requirements at the time of his discharge on 31 August 1994.
3.  The evidence of record shows that the applicant served as a warrant officer in various components of the Army for more than 35 years.  The evidence of record also shows that the applicant had reached his maximum time in service at the time he was transferred to the Retired Reserve.  Thus, it is reasonable to assume the applicant was capable of researching and understanding Army and DoD administrative and financial regulatory guidance as it pertained to the Voluntary Separation Incentive and his discharge from the AKARNG with subsequent transfer to the Retired Reserve.  In addition, there is no evidence of record, and the applicant fails to provide any probative evidence, to support his claim that Headquarters, Joint Forces AKARNG officials failed to properly inform him of the requirements regarding his discharge and the impact of his transfer to the Retired Reserve.  Thus, in the absence of evidence to the contrary, the applicant is not entitled to reinstatement and Federal recognition in the ARNG or USAR IRR, nor reserve retirement point credit retroactive to the date of his transfer to the Retired Reserve, nor restoration of VSI payments.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 635-100, and National Guard Regulation 635-100, which provide the procedures for processing Soldiers for early release programs and retirement.  Therefore, in the absence of evidence to the contrary, the Board concludes that the applicant was properly discharged and transferred to the Retired Reserve in accordance with the regulations in effect at that time and all requirements of law and regulations were met throughout the separation process.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___KAN__  ___SAP_  ___EEM_  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




___Kathleen A. Newman____
          CHAIRPERSON




INDEX

CASE ID
AR20060014519
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/07/10
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20050630
DISCHARGE AUTHORITY
NGR 635-100, Paragraph 4-13(c)
DISCHARGE REASON
Completion of Thirty Years of Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.