IN THE CASE OF:	  

		BOARD DATE:	        27 January 2009 

		DOCKET NUMBER:  AR20080007942 


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 his discharge from the United States Army Reserve (USAR) be voided and he be allowed to remain in the Individual Ready Reserve (IRR). 

2.  The applicant states, in effect, he did not receive the military service obligation (MSO) form until after his discharge.  

3.  The applicant provides an Army Human Resources Command (AHRC) Form 4145 (Election of Options – Military Service Obligation), dated 1 April 2008; an Honorable Discharge Certificate, dated 14 January 2008; and USAR discharge orders, dated 14 January 2008 in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was commissioned as a second lieutenant in the Regular Army on 28 May 1986.  

2.  The applicant was honorably released from active duty on 1 February 1997 under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharge), paragraph 3-5 (Unqualified Resignation).  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows Early Release Program - Voluntary Separation Incentive (VSI) as the narrative reason for separation.  He had completed a total of 10 years, 8 months, and 4 days of creditable service.  Item 18 (Remarks) of his DD Form 214 shows he would be paid VSI in the amount of $11,038.42 per year for 21 years.
3.  The applicant was appointed as a Reserve officer in the rank of captain (CPT)/effective 2 February 1997.  On 31 August 1998, he was promoted to major (MAJ)/O-4.

4.  Orders Number C-12-640850, U.S. AHRC, St. Louis, Missouri, dated
27 December 2006 show the applicant was released from the USAR Control Group (Reinforcement) and assigned to the USAR Standby Reserve (Inactive List) by reason of failing to make an MSO election.  The orders were mailed to his address in Virginia.

5.  The applicant provided a copy of Orders Number D-01-802251, U.S. AHRC, St. Louis, dated 14 January 2008 which shows the applicant was discharged from the USAR for failing 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)).

6.  On 11 February 2008, the applicant requested an MSO election form from U.S. AHRC, St. Louis.  On 5 March 2008, the applicant was informed that it was too late to respond to the MSO election form and that he must submit a request through the Army Board for Correction of Military Records (ABCMR).

7.  The applicant provided an MSO election form authenticated by his signature on 1 April 2008, which shows his election to remain in the IRR.

8.  In the processing of this case an advisory opinion was provided by an official of the Exceptions and Actions Branch Development Directorate, U.S. AHRC, St. Louis, which states, in effect, the applicant was mailed an AHRC Form 4145 on 18 September 2006 and 2 November 2006 and he failed to respond.  He was subsequently discharged on 14 January 2008 and that it was not until the applicant stopped receiving VSI payments that he contacted the customer service center at U.S. AHRC, St. Louis on 11 February 2008.  The advisory official recommended that the applicant remain in a discharge status.

9.  On 17 November 2008, a copy of the advisory opinion was provided to the applicant for comment and/or rebuttal.  He did not respond to the Army Board for Correction of Military Records within the given time frame.

10.  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.
11.  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.

12.  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.

13.  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.

14.  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 request that his discharge from the USAR be voided and he be reinstated in the Individual Ready Reserve was carefully considered and found to have merit.

2.  Notwithstanding the U.S. AHRC, St. Louis advisory opinion, It is reasonable to believe that the applicant's MSO election forms may have been lost in the mail and he was unaware that failure to make an MSO election would result in his discharge from the USAR.  This is evident by the fact that when he discovered he was discharged from the USAR, he immediately tried to resolve the situation through U.S. AHRC, St. Louis channels and ultimately by application to this Board.

3.  The applicant provided a completed and signed AHRC Form 4145 in conjunction with his application to this Board.  It shows he elected to remain in the IRR.  This form is accepted as sufficient to reinstate the applicant in the IRR.

BOARD VOTE:

___x____  ____x___  __x_ ____  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 voiding his 14 January 2008 discharge from the USAR; showing that U.S. AHRC, St. Louis received and processed the applicant's AHRC Form 4145 in a timely manner; and reinstating him in the Individual Ready Reserve.



      _________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)                                         AR20080007942



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ABCMR Record of Proceedings (cont)                                         AR20080007942



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