IN THE CASE OF:	   

		BOARD DATE:	        24 March 2009

		DOCKET NUMBER:  AR20080017900 


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 U.S. Army Reserve (USAR) discharge orders, dated 14 January 2008, be revoked and that he be transferred to the Individual Ready Reserve (IRR) effective 14 January 2008.

2.  The applicant states, in effect, that he is confident he returned his Election of Options - Military Service Obligation (MSO) as required.  He contends the USAR discharge caused him not to receive his Voluntary Separation Incentive (VSI) annuity payment as scheduled on 1 July 2008.  He wants to remain in the USAR.

3.  The applicant provides a "Second Notice" Election of Options - Military Service Obligation, dated 2 November 2006; active duty discharge orders, dated 13 May 1996; USAR discharge orders, dated 14 January 2008; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 July 1996. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a Reserve officer on 3 January 1983 and was later assigned to the Chaplain Corps.  He entered active duty on 29 September 1986.

2.  On 1 July 1996, the applicant was released from active duty in the rank of captain under the provisions of Army Regulation 600-8-24, paragraph 2-5, under the Early Release Program - VSI and transferred to the USAR Control Group (Reinforcement).  Based upon his completion of 9 years, 9 months, and 3 days of active service, his VSI annuity was calculated as $10,279.91 annually for 18 years.

3.  U.S. Army Human Resources Command Orders C-12-640165, dated 27 December 2006, show the applicant was released from the USAR Control Group (Reinforcement) and assigned to the Standby Reserve (Inactive List) for failing to make an MSO election.

4.  U.S. Army Human Resources Command Orders D-01-801743, dated 14 January 2008, show the applicant was honorably discharged from the USAR for failure to provide an MSO election form as required by Department of Defense Directive 1235.13.

5.  In support of his claim, the applicant provided a "Second Notice" Election of Options - Military Service Obligation, dated 2 November 2006.  This form shows that on 12 December 2006, the applicant elected to remain a member of the IRR.

6.  The Election of Options - Military Service Obligation contains the following paragraph:

	NOTE:  An officer will be considered to have made a positive election to remain in the Individual Ready Reserve (IRR) beyond his/her statutory Military Service Obligation (MSO) if the officer has: (1)  signed an election agreement to remain in the IRR;…or (3) elected an option to serve in the IRR in conjunction with receipt of Voluntary Separation Incentive (VSI) payments or other separation pay which incurred a requirement to serve in the IRR.

7.  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 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 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.

8.  The Ready Reserve consists of three Reserve component subcategories, the Selected Reserve, the IRR, and the Inactive National Guard.

9.  The Standby Reserve consists of personnel who maintain their affiliation without being in the Ready Reserve.

10.  Department of Defense Directive Number 1235.13, dated 16 July 2005, provides that each military Service shall manage the VSI in accordance with guidelines established in Department of Defense Instruction Number 1235.14, dated 31 October 1997.  Department of Defense Instruction Number 1235.14 states that VSI payments are made on an annual basis for an established number of years subject to the member remaining in a Reserve component.  That service must be in the Ready Reserve unless the member is transferred from the Ready Reserve to the Standby Reserve or the Retired Reserve through no fault of the member concerned.  Members who are in receipt of the VSI shall be retained in the Ready Reserve (the Selected Reserve or the IRR) as long as they qualify for service in the Ready Reserve.  At the expiration of their VSI contract, officers who have been placed in the Retired Reserve to receive VSI payments because they were ineligible to remain in the Ready Reserve or Standby Reserve for reasons of age, years of service, failure to select for promotion, or medical disability, will be separated from the military service.

DISCUSSION AND CONCLUSIONS:

1.  The governing regulation states that VSI annual payments will be discontinued if the member is separated from the Ready Reserve.

2.  The evidence of record shows the applicant was released from active duty in 1996 under the Early Release Program for VSI.  He was transferred to the IRR as required in order to receive VSI payments.  In December 2006, he was assigned to the Standby Reserve (Inactive List) for failing to make an MSO election, and he was honorably discharged from the USAR on 14 January 2008 for failing to provide an MSO election.  As a result his VSI payments were halted.

3.  Under the provisions of Department of Defense Directive Number 1235.13 an officer would be considered to have made a positive election to remain in the IRR beyond his/her statutory MSO if the officer had elected an option to serve in the IRR in conjunction with receipt of VSI payments or other separation pay which incurred a requirement to serve in the IRR.  That was the case with the applicant.

4.  It appears the applicant should not have been transferred to the Standby Reserve and should have maintained his membership in the Ready Reserve.

5.  In view of the foregoing, and as a matter of equity, the applicant should not be penalized for failing to ensure his MSO election was finalized prior to being discharged from the USAR on 14 January 2008.  It would therefore be appropriate to void the 27 December 2006 and the 14 January 2008 orders and show the applicant remained in the IRR, allowing his VSI to be reinstated.

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:

	a.  voiding U. S. Army Human Resources Command Orders C-12-640165, dated 27 December 2006, and  U.S. Army Human Resources Command Orders D-01-801743, dated 14 January 2008;

	b.  showing that he remained in the IRR based on his 12 December 2006 MSO election; and 

	c.  reinstating VSI payments and making all back payments that are now due as a result of the above corrections.


      __________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)                                         AR20080017900



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ABCMR Record of Proceedings (cont)                                         AR20080017900



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