MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            21 April 1999 
	DOCKET NUMBER:   AR1998014285

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Gary F. Geraets		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That he be reinstated to active duty.

APPLICANT STATES:  That guidance provided to the field regarding the Fiscal Year 1996 (FY96) Army Reserve Active Guard/Reserve (AGR) Voluntary Early Retirement Program (VERP) was changed and the new information was not provided to the field.

EVIDENCE OF RECORD:  The applicant's military records show:

After having had prior enlisted service, he had a break in service and was appointed a commissioned officer in the U. S. Army Reserve in 1979.  He served 4 years on active duty, returned to inactive status, and was ordered to active duty in an AGR status in 1987.  He was promoted to major on 11 October 1990.

Full Time Support Management Center (FTSMC) message 091600Z November 1995 announced the FY96 Release from Active Duty (REFRAD) Board.  It announced an additional VERP window from 10 November to 11 December 1995 which would be followed by an involuntary U.S. Army Reserve AGR officer REFRAD board if not enough VERP applications were received.  The VERP and the involuntary REFRAD board were needed to bring down grade and specialty overages brought about by changes in Congressionally authorized strength and changes in force structure.  All officers who were eligible for the VERP under this message announcement (less those with 18 years of active federal service (AFS) prior to 1 May 1996) would be considered by the REFRAD board.  The applicant was eligible to apply for the VERP.  An individual must have included the statement “I understand that I cannot withdraw my request for separation once approved, except in the case of unforeseen medical hardship” in his application.  The message noted that applications postmarked after window closing would be returned.

Headquarters, Department of the Army (HQDA), Office of the Chief, Army Reserve (OCAR) message 201200Z November 1995 extended the VERP window until 5 January 1996.  The message noted that applications postmarked after the window closing would be returned.

The applicant mailed his VERP application on 5 January 1996.

On 12 January 1996, the applicant’s personnel management officer (PMO) at FTSMC called his wife informing her that the REFRAD board was cancelled and that his packet had not yet been received.  It had not yet been received by           16 January 1996.

HQDA, OCAR message 161200Z January 1996 announced that the window for the FY96 VERP was officially closed.  Sufficient requests for early retirement had been received to meet the projected REFRAD requirements; therefore, the REFRAD board would not be convened.  VERP approvals/disapprovals would be sent within the next two weeks.

On 17 January 1996, the applicant was notified that his VERP had been approved.

On 30 January 1996, the applicant filed a complaint with the Department of the Army Inspector General (DAIG) alleging that, based on guidance provided to the field, the Chief, Army Reserve (CAR) improperly approved his request for VERP and asking that his name be removed form the approved VERP list.

On 6 June 1996, the DAIG responded.  Because the DAIG had received other complaints about the USAR AGR FY96 REFRAD initiatives, they conducted a thorough investigation into all matters related to its preparation and execution.  Their investigation included legal reviews.  They determined that the requirement to draw down the force was real and that the established downsizing procedures were appropriate.  Processing applications after the CAR decided to cancel the REFRAD board was not contrary to the objectives of the VERP.  Even though the number of acceptable VERP applications exceeded the established threshold to cancel the board, the need to continue processing late arriving applications was not eliminated.  In his particular case, the number of USAR AGR majors with a personnel management functional area exceeded the FY97 force structure requirements by 76.  Since only 25 VERP applications in his category were received, his application was approved.

On 28 July 1996, the applicant submitted a request through the FTSMC to OCAR requesting to remain on active duty.  The FTSMC recommended disapproval of his request.  OCAR disapproved his request.

On 31 August 1996, the applicant was retired, under the voluntary early retirement program, in pay grade 0-4.  He had completed 17 years, 3 months and 29 days of creditable active service.

On 1 March 1997, the applicant again filed a complaint with the DAIG.  The DAIG did not formally reply and, on 1 July 1997, the applicant wrote to the Assistant Secretary of the Army (Manpower and Reserve Affairs) with his concerns.  There is no response to his letter.

In the processing of this case, an advisory opinion was obtained from OCAR (SEE ATTACHED).  OCAR noted, among other points, that what the applicant did not understand was that applications known to have been mailed were included in the numbers calculated to reach the goals to eliminate the need for a REFRAD board.  There was no formal “approval” mechanism where an application was date-stamped “approved” or “disapproved,” so that an officer could withdraw an application that was received, but not yet approved or disapproved.  His application was, in effect, pre-approved once he mailed it.

The applicant rebutted this opinion (SEE ATTACHED).  He understood that applications received with a postmark later than the specified date would receive no action and be returned.  His primary contention was with his inability to withdraw his application prior to it being approved.  He took issue with the advisory opinion’s statement  “What the applicant did not understand was that applications known to have been mailed were included in the numbers calculated to reach the goals to eliminate the need for a REFRAD board.”  FTSMC did not know he was going to forward an application.  Even his PMO did not know, as evidenced by his call telling him that the REFRAD board had been canceled.  In addition, if “His application was, in effect, pre-approved once he mailed it,” then all officers who submitted an application were permitted to retire.  This was not the case, as not all officers who submitted applications were permitted to retire.  His submission of the VERP was based upon published rules; if he had known of the unpublished rule change that, upon mailing the request was pre-approved, he would not have taken the course of action he did and would not have submitted his request.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The Board agrees with the DAIG that the requirement to draw down the force was real, that the established downsizing procedures were appropriate and that  processing applications after the CAR decided to cancel the REFRAD board was not contrary to the objectives of the VERP.  

3.  The Board agrees with the applicant that the 091600Z November 1995 message was not clear in stating that “His application was, in effect, pre-approved once he mailed it.”  However, the Board also agrees with the DAIG that the need to continue processing late arriving applications was not eliminated with the cancellation of the REFRAD board.  The references cited in the message described grade and specialty overages brought about by changes in Congressionally authorized strength and changes in force structure.  In his particular case, the number of USAR AGR majors with a personnel management functional area exceeded the FY97 force structure requirements by 76.  Since only 25 VERP applications in his category were received, his application was approved.  The Board concludes that the message was clear in stating that the primary objective of the VERP was to meet the mandated reductions and that any commissioned officer would have understood that if he fell into an overstrength category, his VERP application was going to be approved.

4.  The Board concludes that the applicant’s contention that no one at FTSMC, not even his PMO, had known that he was going to submit an application is incorrect.  The applicant states in his 30 January 1996 letter to the DAIG that his PMO had called his wife on 12 January 1996 to tell her the REFRAD board was cancelled (although it was not officially canceled until the HQDA, OCAR message 161200Z January 1996 announced the closure) and to state that his packet had not been received.  So, his PMO knew prior to the official closing date of the VERP and most likely sometime before 12 January 1996 that he had submitted an application.

5.  The applicant may have had a valid issue about majors being accessed for branch immaterial positions after he was approved for a VERP.  However, the Board notes that this issue was resolved shortly after the DAIG noted it.  It may very well have been his addressing of this issue that brought a stop to the practice, but that does not negate the fact that it was stopped. 

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

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__CMF___  __SK____  __GFG___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998014285	
SUFFIX		
RECON		
DATE BOARDED	19990421	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.		
3.		
4.		
5.		
6.