BOARD DATE:	  15 December 2011

		DOCKET NUMBER:  AR20110010390 


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 back payment, reinstatement, and continuance of Voluntary Separation Incentive (VSI) pay.

2.  She states, in effect, the two non-selections for promotion to lieutenant colonel make her eligible for continuation of VSI pay regardless of her Reserve status.  

3.  She provides:

* DD Forms 214 (Certificate of Release or Discharge from Active Duty) ending 1 August 1993 and 1 January 2007
* Notification of Promotion Status memoranda, dated 12 January 2006 and 4 January 2007
* U.S. Army Reserve (USAR) reassignment and discharge orders, dated 
4 May 2007 and 6 May 2008

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.  The applicant's records show she was appointed in the USAR as a second lieutenant (2LT) on 30 April 1983.  She was appointed in the Regular Army (RA) as a 2LT on 27 June 1983 and she was promoted to captain on 1 June 1987.

3.  On 27 April 1993, she tendered an unqualified resignation from the Army with a VSI pay option and agreed to serve in the USAR for the entire period that the VSI was received.  Her resignation was approved on 2 June 1993. 

4.  Her DD Form 214 shows she was honorably discharged from active duty, on 1 August 1993, under the provisions of chapter 3, Army Regulation 635-120 (Officer Transfers and Discharges), Fiscal Year (FY) 93 Voluntary Incentive Program-VSI.  She was also authorized VSI pay for 20 years (expiration date in August 2013).  She was credited with completion of 10 years, 1 month, and 5 days of net active service.  

5.  She was commissioned in the USAR, as a captain, on 2 August 1993.  She was promoted to major (MAJ) with an effective date of 10 February 2005 and date of rank of 29 April 2005.

6.  She was ordered to active duty in support of Operation Iraqi Freedom and entered active duty on 13 November 2005.  She deployed to Iraq.

7.  She was considered and not selected for promotion to lieutenant colonel (LTC) by the 2006 and 2007 Reserve Components Selection Boards (RCSB). 

8.  She was honorably released from active duty, in the rank of MAJ, on 1 January 2007, for completion of required active service, and she was transferred to the USAR Control Group (Reinforcement).

9.  She was released from the USAR Control Group (Reinforcement) on 4 May 2007, for failure to make a Military Service Obligation (MSO) election per Department of Defense Directive (DODD) Number 1235.13 to remain in the Individual Ready Reserve (IRR), and she was reassigned to an inactive Reserve status.

10.  She was honorably discharged from the USAR on 6 May 2008 for failing to respond to the MSO option letter.  
11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies an officer who twice fails to be selected for promotion to LTC and who is not on a LTC promotion list will be separated unless the officer has a remaining service obligation or can be credited with 18 or more but less than 20 years of qualifying service for retired pay.  USAR officers will be transferred to an inactive status if the Secretary of the Army determines that the officers have skills which are required to meet mobilization needs, to the Retired Reserve, or discharged.

12.  Department of Defense (DOD) Financial Management Regulation, Volume 7A, Chapter 35, paragraph 350801, subparagraph F, states:  “The member must accept voluntary appointment…to the Ready Reserve of a Reserve Component and must continue to serve in a Reserve Component during the entire period of eligibility for VSI.  If the member does not continue to serve in the Ready Reserve, the VSI installments terminate on the date of separation from the Reserve Component or transfer to the Retired Reserve.”  Exceptions are provided for two-time non-selection for promotion, medical disability, age, or other involuntary reasons.

13.  Army policy and the DOD Military Pay and Allowances Entitlements Manual (DODPM), based on Public Law 102-190, dated 5 December 1991, as amended, prescribes the qualifications for entitlement to readjustment benefits for certain voluntarily separated members.  The VSI was one of the monetary benefits associated with this incentive program.  The voluntary incentive program was designed to support the Army's drawdown.  HQDA 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 continues to serve in the Ready Reserve.  VSI annual payments will 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.

CONCLUSIONS:

1.  The evidence of record shows the applicant was honorably discharged from active duty on 1 August 1993 and authorized VSI payment for 20 years (until August 2013).  Her VSI payments were contingent upon her appointment in the USAR and remaining eligible for retention in the IRR.

2.  On 2 August 1993, she was appointed in the USAR and subsequently promoted to major.  She was properly considered for promotion to LTC by the 2006 and 2007 RCSB’s; but, she was not selected.  

3.  However, she was not discharged as a result of the two-time nonselection for promotion.  She was reassigned to an inactive Reserve status on 4 May 2007 and she was involuntarily discharged from the USAR on 6 May 2008 as a result of failing to make an MSO election.  

4.  It is not reasonable to believe that the applicant, who had only five more years to serve before ending her VSI obligation, would have deliberately elected not to make an MSO election.  She was willing to actively serve in the USAR, as evidenced by her deployment to Iraq.  Therefore, it appears that she would not have purposely failed to make an MSO election for continued serving in the IRR with entitlement to VSI payment.

5.  As a matter of equity in this case, her records should be corrected to show she continued to serve in the IRR without a break in service, her VSI payment be resumed, with retroactive payment of any annual payments which were lost as a result of her now deleted separation action.

6.  In view of the foregoing, her records should be corrected as recommended below.

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.  showing the applicant made an MSO election, electing to remain in the Individual Ready Reserve;

	b.  voiding the applicant’s 6 May 2008 honorable discharge from the USAR rendering it null and void;

	c.  reinstating her in the Individual Ready Reserve, effective 6 May 2008, with no break in service; 

	d.  restoring her entitlement to annual VSI pay; and

	e.  retroactively paying her of any lost VSI pay as a result of these 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)                                         AR20110010390



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ABCMR Record of Proceedings (cont)                                         AR20110010390



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