IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100018319 


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 voluntary separation incentive (VSI) payments be reinstated.

2.  The applicant states:

* he lost his VSI benefits for not earning 50 retirement points annually
* he completed 25 years of qualifying service for retired pay
* he was involuntarily placed in the Retired Reserve
* the Chief of Chaplains would not permit him to continue accruing additional active duty days as he would reach sanctuary at 18 years (he had 17 years and 10 months of active duty time)
* his mandatory removal date (MRD) of March 2010 restricts his opportunities to serve in the active Reserve to maintain his VSI
* he was denied an extension on active duty on 23 January 2007 due to the policy regarding chaplain personnel requesting sanctuary at the 18-year mark
* he is restricted from accruing active duty days as an individual mobilization augmentee or active Reserve officer and unable to fulfill the 50-points minimum requirement
* he is restricted due to his MRD from the Chief of Chaplains plus his duties as a pastor and his wife's limited eyesight



3.  The applicant provides:

* message with endorsements pertaining to his request for unqualified resignation, dated 9-31 March 1992
* DD Form 214 for the period ending 1 June 1992
* letter from the Defense Finance and Accounting Service, dated 28 December 1992
* Notification of Eligibility for Retired Pay at Age 60 memorandum, dated 2 July 2003
* memorandum for record, dated 9 November 2006
* request for Contingency Operations Temporary Tour of Active Duty (COTTAD) memorandum, dated 23 January 2007
* email, dated 31 January-1 February 2007
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 28 April 2007
* U.S. Army Human Resources Command (AHRC) Form Letter 3948, dated 3 September 2008, with Election of Options, dated 8 September 2008
* request for waiver for earning required retirement points memorandum, dated 8 September 2008
* reassignment orders, dated 6 October 2008
* AHRC Form Letter 3948 (Nonparticipation in the U.S. Army Reserve (USAR)), dated 9 September 2009, with Election of Options, dated 17 September 2009
* USAR Personnel Command (ARPC) Forms 249-E (Chronological Statement of Retirement Points), dated 6 July 2007, 20 March 2009, and 5 June 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant in the Regular Army on 16 December 1977.  He was promoted to major on 1 October 1989.  On 1 June 1992, he was honorably discharged in the rank of major under the provisions of Army Regulation 635-120 (Officer Resignations and Discharges), chapter 3 (Voluntary Early Transition Program – VSI).  Based upon his completion of 14 years, 5 months, and 16 days of active service, his VSI annuity was calculated as $15,075.65 for 20 years.  He was appointed as a major in USAR on 2 June 1992 and appointed to the Chaplain Corps on 12 February 1998.  He was promoted to colonel on 17 March 2005.

2.  On 1 June 2006, he was ordered to active duty in support of Operation Noble Eagle.

3.  A memorandum from the Office of the Chief of Chaplains, dated 9 November 2006, shows his adjusted MRD as 1 February 2010.

4.  On 23 January 2007, his request for COTTAD was disapproved in accordance with Department of the Army, Office of the Chief of Chaplains, personnel policy regarding chaplain personnel requesting sanctuary on the needs-of-the-Army basis.

5.  He was released from active duty on 28 April 2007 after completing 10 months and 28 days of creditable active service.  His DD Form 214 for the period ending 28 April 2007 shows he had 16 years of prior active service.

6.  He received a memorandum for nonparticipation in the USAR, dated 3 September 2008, which stated, in pertinent part:

* officers (other than commissioned warrant officers) or enlisted Soldiers who do not earn 50 points by their retirement year ending (RYE) dates will be removed from an active status
* if a Soldier does not earn the required 50 retirement points during a retirement year, the regulation provides for a waiver on a ONE-TIME-BASIS
* Soldiers must request the waiver and submit documentation indicating nonparticipation was due to circumstances beyond their control
* VSI recipients will lose benefits if they do not request and receive a waiver
* since waivers are granted on a ONE-TIME-BASIS, VSI recipients must thereafter maintain an active status to continue their Reserve affiliation and receive their benefits
* the applicant was identified as not having earned 50 retirement points during his most recent RYE
* he was instructed to complete the Election of Options and return by the suspense date
* failure to respond will result in him being discharged
* VSI recipients who are discharged or transferred to the Retired Reserve because of nonparticipation will lose their yearly benefits

7.  His Election of Options, dated 8 September 2008, shows he requested a waiver for not fulfilling the requirement to earn 50 points by his RYE date due to personal hardship reasons.  He acknowledged he understood this waiver was a one-time option.

8.  He again received a memorandum for nonparticipation in the USAR for not having earned 50 retirement points during his most recent RYE, dated 9 September 2009.  His Election of Options, dated 17 September 2009, shows he again requested a waiver and acknowledged he had received his one-time waiver for this year, but his circumstances had not changed and he did not desire to transfer to the Retired Reserve.

9.  He was released from the USAR Control Group (Reinforcement) and assigned to the Retired Reserve on 6 October 2009.  His VSI payments were apparently stopped after 2009.

10.  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, 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 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.

11.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized.  Paragraph 2-2 states that retirement points may be earned by USAR Soldiers for active duty or while in an active Reserve status, for active duty for training, initial active duty for training, involuntary active duty for training, annual training, inactive duty for training, and for other activities specified in this regulation.

DISCUSSION AND CONCLUSIONS:

1.  He contends the Chief of Chaplains would not permit him to continue accruing additional active duty days as he was approaching sanctuary at 18 years.  It is noted his request for COTTAD was disapproved on 23 January 2007.  However, active service (active duty or active duty for training) is only one option to earn retirement points.  He could have earned inactive point credit for inactive duty for training, Reserve membership, or correspondence courses.

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

3.  In September 2008, he received a memorandum for nonparticipation in the USAR for not fulfilling the requirement to earn 50 points by his RYE date.  This memorandum advised him that VSI recipients who are discharged or transferred to the Retired Reserve because of nonparticipation would lose their yearly benefits.  He requested a one-time waiver due to personal hardship reasons.  At that time, he was fully aware VSI recipients must thereafter maintain an active status to continue their reserve affiliation and receive their benefits.

4.  He received a second memorandum for nonparticipation in the USAR in September 2009.  Since he was again identified as not having earned 50 retirement points during his most recent RYE and he already had requested a one-time waiver, he was released from the USAR Control Group (Reinforcement) and assigned to the Retired Reserve on 6 October 2009.  As a result, his VSI payments were discontinued.

5.  Based on the foregoing, there is an insufficient basis for granting the requested relief.

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 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)                                         AR20100018319



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ABCMR Record of Proceedings (cont)                                         AR20100018319



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