IN THE CASE OF:	  

		BOARD DATE:	        13 NOVEMBER 2008

		DOCKET NUMBER:  AR20080012352 


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 that her discharge from the United States Army Reserve (USAR) be voided and that her Voluntary Separation Incentive (VSI) payments be reinstated.

2.  The applicant states that she was discharged from the USAR because she did not return a letter verifying her address; however, she thought the letter informed her that no action was necessary if there was no change in her address.  She also states that she owns her own home and has had the same address for 10 years.  She continues by stating that at one time her daughter lived with her and may have discarded the letter in question but she has now moved to a place of her own.  She further states that the error of discharging her has affected her VSI payments and contends that she has been a faithful and dedicated officer who has always been ready to serve and asserts that she will not let this happen again if she is reinstated. 

3.  The applicant provides a copy of her DD Form 214, a copy of orders dated 27 December 2006, assigning her to the Standby Reserve Control Group.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a USAR second lieutenant on 25 May 1983 and was ordered to active duty as an ordnance officer on 9 January 1984.  She served assignments in Texas, Korea, Alabama, and Germany and was promoted to the rank of captain on 1 December 1987.

2.  On 1 June 1995, the applicant was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-100, chapter 3, Section XVI and the Early Release Program - VSI.  She had served 11 years, 4 months and 23 days of total active service and was transferred to the USAR Control Group (Reinforcement).

3.  On 14 May 2005, orders were published promoting the applicant to the rank of major effective 10 February 2005.  The address listed on her orders is the same as her current address.

4.  On 27 December 2006, orders were published by the Human Resources Command - St. Louis (HRC-STL) which directed that the applicant be released from the USAR Control Group (Reinforcement) due to her failure to make a Military Service Obligation (MSO) election.  She was transferred to the Standby Reserve (Inactive List).

5.  On 14 January 2008, the applicant was involuntarily discharged from the USAR due to her failure to respond to an MSO Option letter in accordance with Department of Defense Directive (DODD) 1235.13.  A copy of her discharge orders are not present in the available records.

6.  Records show that the applicant contacted officials at the HRC-STL in May 2008 to inquire as to why her VSI payments had been stopped and she was informed that she had failed to respond to the MSO letter and was subsequently discharged.  She was advised to apply to this Board.

7.  A review of the applicant's records shows no indication that the applicant has had an address change since she was promoted to the rank of major in 2005.

8.  The Voluntary Incentive Program was designed to support the Army’s drawdown.  Headquarters, Department of the Army (DA) Message 281802Z, dated in 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 served on active duty, provided the soldier continues to serve in the Ready Reserve.  It also stipulated that VSI annual payments would 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.     


DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding that the HRC-STL discharged the applicant for her failure to return an MSO election form that the applicant claims she either did not receive or that she misunderstood at the time, there is no evidence in the available records to suggest that the applicant was advised that she would lose her VSI payments if she failed to make a MSO election and was discharged.

2.  The applicant's records confirm that she served honorably on active duty for over 11 years and that she was entitled to the VSI payments for 22 years, upon her REFRAD in June 1995.

3.  Accordingly, it is not reasonable for a prudent person to believe that the applicant or any other individual would knowingly refuse or fail to submit an MSO election if it was in fact received, knowing that failure to do so would result in an action to suspend annual VSI payments.  

4.  It also appears that it would be unjust to penalize the applicant for failure to submit an MSO election statement that ultimately affected her eligibility to continue to receive her VSI payments, knowing that she was most likely unaware or had no knowledge of the consequences.

5.  Therefore, it appears that it would be in the interest of justice to afford her another opportunity to complete her MSO election and if she elects to do so within 180 days of the decision of this Board, her 14 January 2008 discharge from the USAR should be voided and she should be reinstated to her former USAR status with entitlement to her annual VSI payments and all VSI payments that she missed as a result of her 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 upon receipt of a completed MSO election within 180 days of the decision of this Board by voiding her 14 January 2008 discharge from the USAR and reinstating her to her former USAR status with entitlement to her annual VSI payments and all VSI payments that she missed as a result of her discharge.

2.  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 and restoring her VSI payments without her having complied with the requirement to complete an MSO election.  




      _______ _ XXX  _______   ___
       	   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)                                         AR20080012352





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080012352



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1