IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100014195 


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, correction of his record to show he was not discharged from the U.S. Army Reserve (USAR). 

2.  The applicant states, in effect, he did not receive correspondence from the Army Human Resources Command - St. Louis (AHRC-St. Louis) that required his response.  Because he did not respond, he was later discharged from the USAR, which resulted in stoppage of his annual Voluntary Separation Incentive (VSI) payment with 3 years of eligibility remaining. 

3.  The applicant provides a DD Form 256A (Honorable Discharge Certificate), a pay statement from his civilian employer showing his home address, and a copy of Orders C-12-640157 issued by AHRC-St. Louis on 27 December 2006.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's record for the purpose of restoring his VSI payments.

2.  Counsel states, in effect, the applicant made every attempt to contact the Army to determine why his VSI payments had stopped.  He had difficulty obtaining official documentation of his discharge and he was unable to obtain a copy of his discharge orders without counsel's assistance.  

3.  Counsel provides documents submitted by the applicant.

CONSIDERATION OF EVIDENCE:

1.  The applicant accepted an appointment as a commissioned officer and entered active duty in the Regular Army on 13 May 1984.  

2.  On 21 January 1993, he tendered his unqualified resignation from the Army and elected VSI.  In his request he indicated he understood he was required to take the Reserve oath of office and stated he desired appointment in the USAR.  On 4 March 1993, his request was approved.  He was discharged on 1 August 1993 after completing 9 years, 4 months, and 23 days of total active military service.

3.  On 2 August 1993, the applicant accepted an appointment as a Reserve commissioned officer.  An ARPC Form 249-E (Chronological Statement of Retirement Points) shows he remained in an active status in the USAR through 27 December 2006.  

4.  A transaction history in the Integrated Web Services (IWS), a human resources management database maintained by AHRC, shows that on 19 July 2006 AHRC received an AHRC Form 3725-E (Army Reserve Status and Address Verification) from the applicant.  The form shows he indicated interest in assignment to a troop program unit or active duty special work.  Part D (Request for Resignation) shows the handwritten entry "N/A."   

5.  The IWS transaction history also shows a military service obligation (MSO) election letter was mailed to the applicant on 18 September 2006.  As of 2 November 2006, he had not responded and a second notification was sent.  

6.  Orders C-12-640157, issued by AHRC-St. Louis on 27 December 2006, released the applicant from the USAR Control Group (Reinforcement) to the Standby Reserve (Inactive list) effective the date of the orders.  The orders show he was transferred because he had made no MSO election.  The orders stated he would be discharged or transferred to the Retired Reserve (if eligible) within 1 year of the effective date of the order unless he provided an MSO election form requesting to remain in the Individual Ready Reserve (IRR).  

7.  The IWS transaction history shows he was honorably discharged on 14 January 2008 by Orders D-01-801736, issued by AHRC-St. Louis on the same date.  The orders effecting the discharge are not available in his record.  



8.  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 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 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.

9.  Department of Defense (DOD) Directive Number 1235.13, dated 16 July 2005, provides that each military Service shall manage the VSI in accordance with guidelines established in DOD Instruction Number 1235.14, dated 31 October 1997.  

10.  DOD Instruction Number 1235.14 states 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 VSI annual payments will be discontinued if the member is separated from the Ready Reserve.

2.  The evidence of record shows the applicant was discharged from active duty in 1993.  He was appointed in the USAR and assigned to the Ready Reserve 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 DOD Instruction Number 1235.14 an officer would be considered to have made a positive election to remain in the Ready Reserve beyond his statutory MSO if he had elected an option to serve in the Ready Reserve in conjunction with receipt of VSI payments or other separation pay which incurred a requirement to serve in the Ready Reserve.  

4.  In this case, the applicant affirmed his desire to remain in the Ready Reserve (the IRR) by submitting an AHRC Form 3725-E indicating he did not wish to resign.  Although it appears he failed to make a formal MSO election, his intent was clear.  

5.  In view of the foregoing, and as a matter of equity, the applicant should not be penalized for failing to make a formal MSO election.  It would therefore be appropriate to void the 27 December 2006 and 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 HRC-St. Louis Orders C-12-640157, dated 27 December 2006, and HRC-St. Louis Orders D-01-801736, dated 14 January 2008;

    b.  showing that he remained in the IRR; 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)                                         AR20100014195



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ABCMR Record of Proceedings (cont)                                         AR20100014195



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