IN THE CASE OF:	

		BOARD DATE:	      30 December 2008

		DOCKET NUMBER:  AR20080013912 


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 correction of his military records to show that he was transferred from the Retired Reserve to the Individual Ready Reserve (IRR).

2.  The applicant states that on 25 July 2008, he presented his request to the Human Resources Command (HRC), St. Louis, Missouri, to be transferred from the Retired Reserve to the IRR.  His request was denied based on his non-selection twice for promotion to lieutenant colonel.  However, an official at HRC recommended that he submit an appeal to the Army Board for Correction of Military Records (ABCMR).  The applicant wants this transfer to the IRR so that he can join the Army Reserve Nursing Corps.  He contends that he was fully qualified by completing a June 2008 physical examination and [meeting] the administrative criteria.  However, the Nursing Corps requires that he be in an IRR status before transferring to a combat hospital Reserve unit.  He further contends that his active duty discharge orders dated 3 April 1993, states that his Reserve obligation is indefinite.  Moreover, he states that his voluntary separation incentive (VSI) Reserve commitment expires 1 April 2012.  He quotes Army Regulation 140-10, Section II: Exceptions to Removal from Active status, paragraph 7-12.1.b.(2), "Officers or warrant officers who have not completed their statutory service obligation will not be discharged or removed from active status by reason of non-selection for promotion to the next higher grade."  Per his agreement to continually receive VSI payments, he still must incur a statutory service obligation until 3 April 2012.   A message from the Commander, Personnel Command, Alexandria, Virginia, dated 19 February 1993, states that he incurred a service obligation in addition to any current statutory military service obligation in the IRR in accordance with his discharge orders and sections 1174 and 1175, Title 10, U. S. Code.   Failure of the applicant to agree to additional service obligation voids entitlement to VSI.   

3.  The applicant provides copies of his denial message from HRC, St. Louis, Missouri; orders assigning him to the Retired Reserve; discharge orders; extract of Army Regulation 140-10; message from the Commander, Personnel Command; and his Certificate of Release or Discharge from Active Duty (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 10 August 1984, the applicant was appointed as a second lieutenant, Field Artillery, in the United States Army Reserve (USAR), with concurrent call to active duty.

3.  Orders 093-00210, Fort McPherson, Georgia, dated 3 April 1993, released the applicant from active duty effective 1 August 1993, and transferred him to the United States Army Reserve Control Group (Reinforcement).  He had attained the rank of captain, pay grade O-3.  These orders further indicated that his terminal date of Reserve obligation was indefinite and that his VSI Reserve commitment expired on 1 April 2012.

4.  The applicant's DD Form 214 for the period of active duty ending on 1 August 1993 shows that he was voluntarily released from active duty in accordance with the VSI Program and transferred to the IRR.  Item 18 (Remarks) states that he was to receive VSI payments for 18 years.  The applicant had completed 8 years, 11 months, and 22 days of creditable active duty service.

5.  The applicant was promoted to major, USAR, Field Artillery, effective 
14 February 1996.  

6.  A memorandum from the United States Total Army Personnel Command, St. Louis, Missouri, dated 4 February 2003, notified the applicant of his non-selection for promotion to lieutenant colonel by the Department of the Army Reserve Components Selection Board that convened on 4 September 2002.

7.  A memorandum from the United States Total Army Personnel Command, St. Louis, Missouri, dated 19 February 2004, notified the applicant of his non-selection for promotion to lieutenant colonel by the Department of the Army Reserve Components Selection Board that convened on 3 September 2003.

8.  Orders C-03-405605, United States Army Human Resources Command, St. Louis, Missouri, dated 10 March 2004, released the applicant from the United States Army Reserve Control Group (Reinforcement) [IRR] and assigned him to the Retired Reserve, effective 1 August 2004.

9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), provides, in pertinent part, that an officer who fails selection to lieutenant colonel a second time will not again be considered for promotion and will be removed from an active status within 
90 days after the selection board submits its results to Headquarters, Department of the Army.  USAR officers will be either transferred to the Retired Reserve or discharged. 

10.  An e-mail, provided by the applicant, from a human resources assistant at HRC, St. Louis, Missouri, dated 26 August 2008, informed the applicant that he had been transferred from the IRR [active status] to the Retired Reserve as a result of his twice being non-selected for promotion to lieutenant colonel.  

11.  Department of Defense Military Pay and Allowances Entitlements Manual (DODPM), based on Public Law 102-190, 5 December 1991, as amended, prescribes the qualifications for entitlement to readjustment benefits for certain voluntary separated members.  The VSI was one of the monetary benefits associated with this incentive program.  The policy published to support the military drawdown stipulated that members 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 that the member continued to serve in the IRR.  It further stipulated that VSI annual payments would be discontinued if the member was voluntarily separated from the IRR.



12.  Headquarters, Department of the Army message 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 Soldier continued to serve in the IRR.  VSI annual payments would be discontinued if the member was separated from the IRR unless the individual became ineligible to continue to serve.  Reasons for ineligibility included the Soldier's medical condition, age, and non-selection for mandatory promotion.   Soldiers determined to be ineligible for further service in the IRR would be transferred to the Retired Reserve in order to allow for the continuation of VSI payments only with no additional benefits authorized.

13.  Army Regulation 15-185, provides the regulation that governs the operation of the Board, sets forth the procedures for processing requests to correct military records states, in pertinent part, that the Army Board for Correction of Military Records begins its consideration of each case with the presumption of administrative regularity and the burden of proving error or injustice by a preponderance of the evidence rests with the applicant.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his transfer to the Retired Reserve was done in error because he still has a Reserve obligation based on his VSI Reserve commitment to 2012.

2.  The applicant is advised that he was transferred to the Retired Reserve so that he could continue to receive the reminder of his VSI benefit.  Had he instead been discharged in connection with this processing, he would have lost his Reserve affiliation and as a result forfeited his right to any future annual VSI payments.  Therefore, notwithstanding other eligibility criteria, he was provided the option to transfer to the Retired Reserve in order to retain his VSI eligibility.  

3.  The governing regulation mandated that commissioned officers who are twice not selected for promotion to lieutenant colonel were to be discharged or retired.  Therefore, since the Board finds no error or injustice related to that action, it is compelled to deny the requested relief in the interest of fairness to all those who served and faced similar circumstances.  




4.  The applicant contends that the entries on his 1993 orders, that released him from active duty, regarding his indefinite Reserve obligation and his VSI Reserve commitment that expires in 2012, require him to remain in the IRR [active status] to 2012.  He has misinterpreted these entries.  The orders are simply showing that his Reserve obligation is not tied to any fixed date or period of time.  The entry regarding the expiration of his VSI commitment simply means that his last annual payment will be in 2012.   

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ___X___  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.




      _______ _   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)                                         AR20080013912





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ABCMR Record of Proceedings (cont)                                         AR20080013912



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