RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 October 2007
	DOCKET NUMBER:  AR20070000984 


	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

Ms. Jeanne Marie Rowan

Analyst


The following members, a quorum, were present:


Ms. Carman Duncan

Chairperson

Mr. Chester Damian

Member

Mr. Ronald Gant

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 that he be allowed to do an antedated reenlistment for a period of three years.

2.  The applicant states, in pertinent part, that he was in the Army National Guard and that he was transferred to the Retired Reserve instead of the Individual Ready Reserve (IRR).  After receipt of his Retired Reserve orders, he realized that he should be in the IRR to continue getting his voluntary separation incentive (VSI) benefits.  The Army National Guard amended his order and transferred him to the IRR, but it did not give him enough time to reenlist or to extend before his expiration of term of service (ETS) date of 16 January 2006.

3.  The applicant provides separation orders and Retired Reserve orders in support his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he enlisted in the Regular Army on 13 December 1977, and was awarded the military occupational specialty 52B (Special Purpose Equipment Repairer).  The highest rank he attained while serving on active duty was sergeant first class/pay grade E7.

2.  On 4 September 1992, the applicant was honorably released from active duty and transferred to the United States Army Reserve (USAR) Individual Ready Reserve (IRR), at his own request, in accordance with the Fiscal Year 1992 Enlisted voluntary Early Transition Program.  The applicant was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he completed 14 years, 8 months, and 23 days of net active service during this period.  Item 18 (Remarks) of the applicant's DD Form 214 shows the entry "VSI Payment $9,655.47 for 32 years."

3.  On 27 June 2005, the applicant was notified that he was eligible for retired pay at age 60 otherwise known as his "Twenty Year Letter" by the Department of the Army and Air Force State of Oregon Military Department.  

4.  Records show the applicant was transferred to the Retired Reserve and issued a NGB Form 22 (Department of the Army and the Air Force National Guard Bureau Report of Separation and Record of Service) with an effective date of 16 January 2006.  The NGB Form 22 shows the applicant enlisted in the Army National Guard (ARNG) of the State of Oregon on 17 January 1997 and that he served continuously until his transfer.  He served 9 years in the ARNG during this period of service.  The NGB Form 22 shows his total service for retired pay is 
25 years, 6 months, and 26 days. 

5.  On 21 March 2006, the Oregon National Guard published Order 080-052 which discharged the applicant from the Army National Guard and transferred him to the Retired Reserve effective 16 January 2006.  The authority cited on the order was National Guard Regulation 600-200, paragraph 8-27u with a reenlistment code of RE-3.

6.  On 2 November 2006, the Oregon National Guard revoked the applicant's transfer Order 080-052 and published Orders 306-003 which discharged the applicant from the ARNG and assigned him to the USAR Control Group (IRR) with an effective date of 16 January 2006.  

7.  On 2 November 2006, the National Guard Bureau published NGB Form 22A (Correction to NGB Form 22) which shows the correction whereby the applicant was not transferred to the Retired Reserve, but that he was transferred to the USAR Control Group (IRR) and the reason for transfer was expiration of his active status commitment in the Selected Reserve.  His reenlistment code was changed from RE-3 to RE-1, eligible for immediate reenlistment. 

8.  On 19 December 2006, the Human Resources Command-St. Louis published orders discharging the applicant from the USAR, with an effective date of 19 December 2006.

9.  Records show the applicant contacted Human Resources Command-St. Louis inquiring into an antedated reenlistment.  However, the applicant was not eligible for an antedated reenlistment contract as the minimum reenlistment period is three years and the applicant will reach age 60 on 13 December 2008 making him ineligible for reenlistment.

10.  The National Guard Bureau (NGB) issued an advisory opinion on 31 August 2007, which states in pertinent part, that NGB recommends disapproving the applicant's request to correct his records by publishing an antedated reenlistment contract.  The advisory opinion states the applicant should have requested an extension prior to his expiration of his term of service, which would have extended him onto an active drilling status making him eligible for his VSI payments.  


11.  On 31 August 2007, the Army Review Board Agency wrote the applicant and provided him a copy of the NGB advisory opinion providing him an opportunity to prepare and submit a rebuttal.  The applicant was given 21 days in which to submit rebuttal comments for consideration.  He did not respond.

12.  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 for other involuntary reasons.

13.  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.

14.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 6 of the regulation relates to the transfer assignment to the Retired Reserve.  It states, in pertinent part, that assignment to the Retired Reserve must be requested by Soldiers who meet the eligibility criteria for such transfer. 




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was transferred to the Retired Reserve instead of the USAR Control Group (IRR) and that he should be allowed to antedate his reenlistment contract for a period of three years to continue getting his VSI financial payments.  

2.  In order for the ARNG to publish the applicant's Report of Separation and Record of Service, which transferred him to the Retired Reserve, the applicant had to submit a voluntary written request requesting he be transferred per Army Regulation 140-10.  When enlisted Soldiers attain 20 qualifying years of service, the enlisted Soldiers must apply for transfer to the Retired Reserve or upon their ETS they will be discharged.  The applicant was transferred to the Retired Reserve at his request, and then he realized his VSI payments would end, as he no longer met the requirement for VSI payment eligibility.

3.  The applicant applied to the State of Oregon Military Department and had his retirement separation orders revoked and then requested new orders transferring him to the USAR Control Group (IRR).  National Guard Bureau published NGB Form 22A separating the applicant from the ARNG and transferring him to the USAR Control Group (IRR).  The applicant did not reenlist in the ARNG or the USAR, as he was not eligible because he could not complete three years of enlistment service prior to reaching 60 years of age, the mandatory age for separation.  

4.  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.  The applicant has not provided evidence nor shown that an injustice occurred when he voluntarily requested his transfer to the Retired Reserve.  While it is unfortunate that the applicant did not extend his enlistment to age 60, and thereby lost his eligibility to VSI payments, it was his responsibility to maintain his status in the Ready Reserve.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__CD ___  __CD ___  __RG   __  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.




_____Carman Duncan________
          CHAIRPERSON




INDEX

CASE ID
AR20070000984
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071030
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
106.0009
2.

3.

4.

5.

6.