IN THE CASE OF:	  

		BOARD DATE:	       18 December 2008

		DOCKET NUMBER:  AR20080003175 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her discharge from the United States Army Reserve (USAR) be voided and she be allowed to remain in the Individual Ready Reserve (IRR) until her last VSI (Voluntary Separation Incentive) payment is made.

2.  The applicant states, in effect, that she was unfairly discharged from the USAR on 18 January 2008 because of failure to provide a military service obligation (MSO) election form which she states she did not receive.  She continues to state, in effect, that as a VSI recipient she had no intentions of leaving the USAR until she received the remainder of her VSI payments estimated at over $50,000.00.  She states, in effect, that she had been a member of the IRR and Standby Reserve for the past 15 years and planned to remain in the IRR until she received her last VSI payment.  She finally states, in effect, that her discharge should be revoked and she be allowed to remain in the USAR until she receives her final VSI payment.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of her unqualified resignation (Category 1, VSI).

CONSIDERATION OF EVIDENCE:

1.  The applicant's DD Form 214 issued at Fort Leavenworth, Kansas, shows she was commissioned as a second lieutenant in the Regular Army on 19 December 1982.  The highest grade she held while serving on active duty was captain (O-3).

2.  On 1 August 1993 the applicant tendered her request for unqualified resignation from the U.S. Army in order to participate in the VSI program.  The memorandum also shows she agreed to be appointed in the USAR for the period she was entitled to receive VSI.

3.  The applicant was honorably released from active duty on 1 August 1993, under the provisions of Army Regulation 635-100 (Personnel Separations), chapter 3, Early Transition Program-VSI.  She had a total of 10 years, 7 months, and 13 days of creditable service.  Item 18 (Remarks) of her DD Form 214 states that she would be paid VSI in the amount of $9,902.19 per year for 21 years.

4.  The applicant was appointed as a Reserve officer in the rank of captain effective 2 August 1993.  On 10 February 2005 she was promoted to major 
(O-4).

5.  Orders Number C-12-641186, U.S. Army Human Resources Command, 
St. Louis, Missouri, dated 27 December 2006 show the applicant was assigned to the USAR Standby Reserve for failure to make an MSO election.  The orders were mailed to her address in Kansas.

6.  The applicant submitted a copy of Orders Number D-01-802497, U.S. Army Human Resources Command, St. Louis, Missouri, dated 14 January 2008 which shows that the applicant was discharged from the USAR for failure to provide an MSO election form as required by Department of Defense (DOD) Directive 1235.13, (Management of the Individual Ready Reserve (IRR) and the Inactive National Guard (ING).

7.  On 22 January 2008 the applicant requested to be reinstated into the IRR and on 23 January 2008 the applicant was told that she must submit a reinstatement request through the ABCMR.

8.  In the processing of this case an advisory opinion was provided by the Human Resources Assistant, Operations Support Division, Army Human Resources Command, St. Louis, Missouri, which states, in effect, the applicant failed to respond to two elections.  She was discharged on 14 January 2008.  The advisory recommended that this case be forwarded to the Army Board for Correction of Military Records (ABCMR) for final determination.



9.  On 11 December 2008, the applicant was provided a copy of the HRC advisory opinion in order to have the opportunity to respond to its contents. 

10.  On 15 December 2008, the applicant provided her rebuttal to the advisory opinion rendered in her case. 

11.  Army policy and DOD Military Pay and Allowances Entitlements Manual, based on Public Law 102-190, 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 VSI program was designed to support the Army’s drawdown.

12.  Headquarters, Department of the Army, message dated 281802Z January 1992 clarified issues associated with the VSI 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 Soldiers continue to serve in the Ready Reserve.

13.  The same message states that 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 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 Soldier 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.

15.  DoD Directive 1235.13, paragraph 4.5, in pertinent part states, officers who have fulfilled their MSO and have not taken action to elect to remain in the IRR shall be advised of the requirement to remove them from the military. The Military Departments shall remove those officers from the military within 2 years after fulfillment of the officer’s MSO unless they positively elect to remain in the IRR past their MSO.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that her discharge from the USAR should be voided and she continue to receive her VSI payments because she was unable to make an MSO election because she did not receive her forms in the mail were carefully considered and found to have merit.

2.  It is reasonable to believe that the applicant's MSO election letters may have been lost in the mail and she was unaware that failure to make an MSO election would result in her discharge from the USAR and would cancel her entitlement to VSI payments.  This is evident by the fact that when she discovered that her discharge from the USAR resulted in the discontinuation of her of VSI payments, she immediately tried to resolve the situation through the Human Resources Command, St. Louis, channels and ultimately by application to this Board.

3.  The record further confirms the applicant served honorably on active duty for over 10 years and was entitled to VSI payments in the amount of $9902.21 per year for 21 years upon her separation from active duty in 1993.  It is unreasonable to believe that she or any other individual would voluntarily accept a discharge knowing that such an action would suspend her earned annual VSI payments.

4.  In view of the facts of this case, absent proper counseling regarding her options, it is concluded that it would be unjust to allow the applicant's USAR discharge to stand given the impact it had on her eligibility to continue to receive her earned VSI payments.  Thus, it would serve the interest of equity and justice to void applicant’s 14 January 2008 USAR discharge.

5.  However, the applicant will still be required to make an MSO election.  If she fails to make an MSO election within 6 months of the date of these Proceedings she will again be subject to discharge. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by  voiding her 14 January 2008 discharge from the USAR and reinstating her in the IRR, by restoring her entitlement to annual VSI payments, and by authorizing her retroactive payment of any lost VSI payments that resulted from her discharge from the USAR.

2.  The applicant will be required to make an MSO election within 6 months of the date of these Proceedings or else she will again be subject to discharge.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to voiding her discharge from the USAR without the caveat that she make an MSO election within 6 months of the date of the Proceedings.




      ____________X_____________
       	     CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003175



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ABCMR Record of Proceedings (cont)                                         AR20080003175



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