RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2008
	DOCKET NUMBER:  AR20080000623 


	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

Mrs. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. Redmann

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 his Voluntary Separation Incentive (VSI) payments be resumed.

2.  The applicant states he was told that if he retired from the U. S. Army Reserve his status would change to retired.  He does not want to get retired pay.  All he wants is to get his VSI that he earned.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 September 1992 and orders assigning him to the Retired Reserve.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 2 February 1947.  After having had prior service, he enlisted in the Regular Army on 3 November 1981.

2.  On 29 September 1992, the applicant was discharged under the Early Release Program – VSI after completing a total of 15 years, 10 months, and     27 days of creditable active service.  His DD Form 214 indicates he would receive 31 annual VSI payments of $8,450.25 each.

3.  Beginning around March 1999, the applicant transferred several times between various control groups of the U. S. Army Reserve and/or a troop program unit, but he never completed sufficient Reserve component service to receive notification of eligibility for retired pay at age 60 (a 20-year letter).

4.  Headquarters, 65th U. S. Army Regional Readiness Command (RRC) Orders 05-333-00026, dated 29 November 2005, transferred the applicant from a troop program unit to the Retired Reserve effective 27 December 2005 as a result of completing 20 or more years of qualifying service for retired pay at age 60 .

5.  The applicant turned age 60 on 2 February 2007.

6.  The National Defense Authorization Act for Fiscal Year 1992 established voluntary incentive programs to support the Army drawdown.  The VSI was one of the monetary benefits associated with this incentive program.  Headquarters, Department of the Army message 281802Z January 1992 clarified issues associated with the VSI program via a question and answer format.  It stated 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 continued to serve in the Ready Reserve.  VSI annual payments would be discontinued if the member was separated from the Ready Reserve unless the individual became ineligible to continue to serve due to medical or age limitations, in which case the Soldier would be transferred to the Standby Reserve or the Retired Reserve.

7.  Title 10, U. S. Code, section 12731 provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least        60 years of age; has performed at least 20 years of qualifying service; and, effective 1 October 2002, (and for the period of time concerning the applicant) shall have performed the last 6 years of qualifying service while a member of a Reserve component.

8.  In the processing of this case, an advisory opinion was obtained from the Program Manager, Transitions and Separations, U. S. Army Human Resources Command – St. Louis (USAHRC – STL).  That office noted that VSI may be continued when the reason for removal from the Ready Reserve is maximum age or physical disqualification.  The applicant was not transferred to the Retired Reserve for either of those reasons.  That office spoke with the applicant and advised him to get with the command that issued the Retired Reserve orders and have them either amend his orders or revoke them and issue new orders with an effective date on or around the date of his 60th birthday and show the reason for the transfer as “Maximum Age.”  That would fulfill the requirements of the law and permit that office to continue certify the applicant for VSI payments.  The applicant either did not contact that command or the command refused to correct the orders, as the advisory opinion now recommends that this Board make the same correction.  The advisory opinion also noted that the applicant did not meet the eligibility criteria for receipt of retired pay as his last six qualifying years were not completed in a Reserve component.

9.  A copy of the advisory opinion was provided to the applicant for comment.  On 15 February 2008, he concurred with the advisory opinion.

DISCUSSION AND CONCLUSIONS:

1.  On 29 September 1992, the applicant was discharged under the Early Release Program – VSI.  He would receive 31 annual VSI payments of $8,450.25 each as long as he remained in the Ready Reserve.  VSI annual payments would be discontinued if he was separated from the Ready Reserve unless he became ineligible to continue to serve due to medical or age limitations, in which case he would be transferred to the Standby Reserve or the Retired Reserve.

2.  The applicant actively participated in the Ready Reserve for a number of years after 1999, but never to a sufficient degree to earn a Reserve retirement.  It appears the 65th U. S. Army RRC erroneously transferred him to the Retired Reserve in December 2005 as a result of completing 20 or more years of qualifying service for retired pay at age 60.  USAHRC - STL advised the applicant to contact the 65th U. S. Army RRC to correct its orders; however, it appears that he either did not contact that command or the command refused to correct the orders.

3.  The applicant turned age 60 in February 2007.  It would be equitable at this time to void Headquarters, 65th U. S. Army RRC Orders 05-333-00026, dated  29 November 2005, and to show that the applicant was assigned to the Retired Reserve effective 2 February 2007 by reason of “Maximum Age.”  As noted in the advisory opinion, this correction would fulfill the requirements of the law and permit USAHRC - STL to continue to certify the applicant for VSI payments.

BOARD VOTE:

__cd____  __lmd___  __jcr___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  voiding Headquarters, 65th U. S. Army Regional Readiness Command Orders 05-333-00026, dated 29 November 2005, and

     b.  showing the applicant was assigned to the Retired Reserve effective         2 February 2007 by reason of “Maximum Age.”




___Carmen Duncan______
          CHAIRPERSON