MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           5 August 1999                   
	DOCKET NUMBER:   AR1999020262

	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	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ernest W. Lutz, Jr.		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:  Special separation pay.  

APPLICANT STATES:  That he submitted a request for transfer from the active Reserve to the Retired Reserve with the accompanying special separation pay.  The request was forwarded to 94th Army Reserve Command (ARCOM), remained for two months with no action taken, returned to the 3d JAG, who recommended approval, and returned to the 94th ARCOM on 13 June 1994.  His request was disapproved one day prior to his mandatory removal date, the reason being that he had requested and was assigned on 14 November 1993 to a valid position in the 3d JAG Detachment.  He states that he made no such request, nor was he transferred to the 3d JAG Detachment on that date.  He states the reasons for the denial of his request appeared to be based on misstatements and incorrect facts.      

He states that he was the detachment commander of the 41st JAG Detachment, a unit under the command of the 94th ARCOM.  That detachment was eventually inactivated on 31 January 1994.  He goes on to say that although orders of       18 January 1994 show him as being assigned to the position of Chief of Criminal Law of the 3d JAG Detachment effective 14 November 1993 due to a unit vacancy, the unit manning report (UMR) of the 41st JAG Detachment dated         6 January 1994 show him with that unit; and the UMR of the 3d JAG Detachment of 6 January 1994 actually shows another lieutenant colonel occupying the position of the Chief of Criminal Law of the 3d JAG Detachment.  Additionally, the DA Form 1379 for the month of January 1994 for the 41st JAG Detachment shows him pending transfer as of 31 January 1994.  He states that there was not a unit vacancy with the 3d JAG Detachment on 14 November 1993, as another lieutenant colonel [as indicated above] was occupying the position.

He states that he never received copies of the order allegedly transferring him from the 41st to the 3d JAG Detachment, nor did he sign a request for transfer to the 3d JAG Detachment prior to 1 April 1994.

He alleges that the commander of the 94th ARCOM is incorrect about the order transferring him to the 3d JAG Detachment, that the 94th ARCOM issued false and inaccurate orders to deprive him and other members of the 41st JAG Detachment of their rights and due process under PL 102-484, and that the 94th ARCOM used delaying tactics so his MRD would coincide with its denial.  

He states that not until 31 January 1994, after he ceased to be the commander of the 41st JAG Detachment, did he receive an explanation of his rights under the transition benefits program.  He states that from the time of the deactivation of the 41str JAG Detachment to the date of his MRD, he was only overstrength in the 3d JAG Detachment, and accordingly, he is entitled to transition benefits with special separation pay effective 1 April 1994, the date of his submission of DA Form 4187 (Request for Transfer).
COUNSEL CONTENDS:  Counsel provides an affidavit from the applicant, an affidavit from the civilian unit administrator (UA) of the 3d JAG Detachment, and a rebuttal to the advisory opinion.  

In his affidavit (COPY ATTACHED), the applicant provides much of the information as in his aforementioned statements.  He does say that the 41st JAG Detachment was a subordinate unit of the 3d JAG Detachment, that his home of record was in Fairfield, Connecticut, 155 miles from Boston, and since his assignment to the 41st in November 1988 he always reported to IDT drill in the Springfield, Massachusetts area (first in Springfield and then at Westover AFRC in Chicopee, a city near Springfield) until his transfer to the Retired Reserve in     July 1994.  He states that after he retired the former members of the 41st JAG continued to participate in IDT periods at Westover AFRC for at least one year.  He states at no time did he ever request assignment to a unit in Boston, nor did he ever drill in Boston.  He states that around the spring of 1993 the 3d JAG informed him that the 41st JAG was being inactivated, and was informed on several occasions of extensions of the inactivation order.  He states that the     41st IDT drill in January of 1994 was cancelled due to a severe snowstorm, that in March 1994 he met in Boston with the 3d JAG commander concerning the inactivation of the 41st and its personnel. That officer told the applicant that personnel would be carried as overstrength until they could find a Reserve unit position.  The applicant was offered a position with the 3d JAG; however, he declined, saying that he had received his “20 year” letter, his MRD was imminent, and he did not want to commute for drills.  He stated that at no time did he receive the 94th ARCOM order of 18 January 1994 transferring him to the 3d JAG effective 14 November 1993, and states that he saw a copy in late 1994 when preparing his request to this Board.

The unit administrator of the 3d JAG, in his affidavit (COPY ATTACHED) of         10 March 1999, stated that he served in the capacity of UA from 15 April 1994 and shortly after his arrival he attempted to slot individuals who were over strength or over grade.  He stated that he used the January 1994 DA Form 1379 of the  41st JAG to slot the applicant as overstrength in the 3d JAG, and that to the best of his knowledge, the applicant was carried in either an overstrength or dual slotted position until his retirement.  The applicant did not drill in Boston, nor did he have a valid position in the 3d JAG.  The 94th ARCOM order of                   18 January 1994 transferring the applicant to the 3d JAG was not received until well after that date.

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

The applicant was a Reserve lieutenant colonel assigned to troop program unit of the 94th ARCOM until his transfer to the Retired Reserve in July of 1994.

On 13 April 1993 an order was published inactivating the 41st JAG Detachment, a unit with an authorized strength of 5 officers and 5 enlisted soldiers, effective       1 October 1993.  The effective date of the inactivation was later changed to       15 November 1993, and then again on 12 November 1993, changed to                31 January 1994.

A 2 December 1993 chronological statement of retirement points indicates that the applicant had 20 qualifying years of service for retired pay effective on his retirement year ending (RYE) date of 10 August 1993.

A document titled “USAR REQUEST vacancy management unit transcript” of the 41st JAG Detachment of 6 January 1994 shows that the applicant was occupying the position of chief trial counsel with that unit.  A like-titled document of the      3d JAG Detachment of 6 January 1994 shows a lieutenant colonel (not the applicant) occupying the position of Chief of Criminal Law with that unit.  A        DA Form 1379 (Unit Record of Reserve Training) of the 41st JAG Detachment for January 1994 shows that the applicant was pending transfer to the 3d JAG Detachment effective 31 January 1994.  A DA Form 1379 of that unit for February 1994 shows that the applicant was transferred to the 3d JAG Detachment on 31 January 1994 due to unit inactivation.    

On 7 January 1994 the Army Reserve Command in Atlanta forwarded to the    94th ARCOM the notification letter of 1 October 1993 from the Total Army Personnel Command in St. Louis informing the applicant that he was one of the officers considered but not selected for promotion by the 1993 Colonel, APL, Reserve Components Promotion Selection Board.

On 18 January 1994 the 94th ARCOM published an order releasing the applicant from the 41st JAG Detachment in Chicopee, Massachusetts, and assigning him to the 3d JAG Detachment in Boston as the Chief of Criminal Law, effective           14 November 1993.

On 1 April 1994 the applicant, then a member of the 3d JAG Detachment, stated that he had 27 years of qualifying service for non-regular retired pay, and he understood that due to the inactivation or reorganization of his unit he had to be reassigned.  He requested transfer to the Retired Reserve with special separation pay because assignment to another unit was not available.  An addendum to that DA Form 4187 states in pertinent part:  “According to DARP 249 and counseling by my unit, I have at least 20 years of qualifying service.  I understand that due to the inactivation or reorganization of my unit I must be reassigned.  I have been informed that the following options are available to me:  . . .   “If I am not offered a valid assignment, I am authorized either:  1.  Special separation pay contingent upon my transfer to the Retired Reserve;” and, “On a case-by-case basis, I may be assigned to another unit within reasonable commuting distance in an overstrength status for a period of up to one year.  My Army Reserve Command will determine my unit of assignment.  Within 1 year I may be assigned to a valid position in a unit and continue Selected Reserve participation.  If a valid position is not available within one year, I am authorized either:  1.  Special separation pay contingent upon my transfer to the Retired Reserve …. ”   The applicant signed the request and the addendum.  The name of the commanding officer of the 3d JAG Detachment, the applicant’s commander, is printed as a witness, and he duly signed that document.

On 4 June 1994 the request was returned to the commander of the 3d JAG Detachment for a recommendation.  On 13 June that official recommended approval of the applicant’s request due to his unusual circumstances.  On            9 July 1994 the 94th ARCOM commander recommended disapproval of the applicant’s request for separation pay, stating that the applicant had requested and was assigned to a valid position in the 3d JAG Detachment on                     14 November 1993.  His MRD was 10 July 1994.  He recommended to the Army Reserve Command in Atlanta that the applicant be transferred to the Retired Reserve without transition benefits. 

The applicant was transferred to the Retired Reserve on his MRD                       on 10 July 1994.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Chief of the Army Reserve (CAR).  That agency agreed with the legal opinion of the 94th ARCOM staff judge advocate, who stated on            29 June 1994 that documents indicated that the applicant at his request was assigned to the 3d JAG on 14 November 1993, and that the applicant’s characterization of it as a temporary attachment was not supported by the information.  The SJA recommended that transition benefits be denied.

That agency states that the document that the applicant  identified as a UMR, is in fact a  “Request Management Unit Transcript”, a management tool to manage positions and vacancies, that it is not the official unit manning report nor does it present the actual status of unit assignments.  The First U.S. Army UMR provided by the CAR for the 3d JAG shows the applicant assigned as the Chief of Criminal Law, effective 14 November 1993.  The officer who the applicant states was assigned to that position is shown on this UMR as assigned as the Chief Intel/Ops Law effective 24 January 1994.

The CAR states that the applicant was drilling with the 3d JAG, accruing time toward the 20 year letter he desired, and was awaiting the results of the Colonel promotion selection board.  The CAR points out that the applicant himself has stated in his memorandum of 10 May 1994 that he accepted assignment to the 3d JAG to continue to accrue time toward his 20 year letter, and to wait for the results of the Colonel selection board.  (Note:  In this memorandum to the commander of the 3d JAG, the applicant requested transfer to the Retired Reserve with SSP, saying, among other statements, that the 41st JAG was deactivated in October or November 1993, that hoping to obtain his 20 year letter so that he could qualify for the transition program, he accepted a temporary attachment to the 3d JAG, and to date he had not received any orders, and he was also awaiting the outcome of the Colonel’s promotion board.  The applicant continued by saying that in late February he received notification of his non-selection for promotion, and after consultation with him [3d JAG commander] at the March drill, it was decided he should request transfer to the Retired Reserve with SSP.  The decision was more poignant  because more reductions might be forthcoming, and the 3d JAG commander could not assure him of his future temporary assignment with the 3d JAG).

In a 7 July 1994 staffing document recommending to the 94th ARCOM commander that the applicant not receive transition benefits, furnished by the CAR with its advisory opinion, a staff officer of that ARCOM stated that he had talked with the applicant, explained that he could be entitled to benefits due to no valid position within 50 miles, that 3d JAG had offered him a valid position and he was assigned effective 14 November 1993.  That officer stated that he talked with the applicant again in early May 1994, informing him that he had been assigned to a valid position at his request and he was not entitled to any benefits. At that time, the applicant explained his concern about being required to make a decision before the results of the Colonel promotion board were released.   

In his rebuttal (COPY ATTACHED) to the aforementioned advisory opinion, the applicant’s counsel states that the applicant did not receive word of the final inactivation date of the 41st JAG until mid February 1994, that he did meet with the 3d JAG commander in March 1994, at which time they decided that personnel of the 41st JAG would be attached to the 3d JAG in over-strength positions but continue to drill at their present location.  The applicant was offered a position at the 3d JAG, but the applicant declined, stating that he would request retirement .  Counsel states that at no time did the applicant see any orders transferring him to the 3d JAG prior to that meeting, that at no time did he sign a request for transfer to the 3d JAG, nor agree to travel the 155 miles from Fairfield to Boston.  Counsel states that the 3d JAG did not have an open position for the applicant, and that at no time from the time the applicant learned of the inactivation of the 41st JAG until his 12 March meeting was he informed that he was in a position with the 3d JAG.  Counsel states that at no time did the applicant drill with the 3d JAG, except for joint meeting of all subordinate units of the 3d JAG.  

Counsel states that the applicant lost his position with the 41st JAG and qualified for SSP, that the 18 January 1994 order backdated to 14 November 1993, was one day before the 41st JAG was ordered to be inactivated by the second of three inactivation orders, and that the order was invalid as the regulation prohibits involuntary transfer of Reserve personnel beyond 50 miles from their home without their consent, which is obtained by submitting a DA Form 4651-R requesting transfer.  There is no such document in this case.

Counsel comments on 3 February 1994 First U.S. Army UMR, dated eighty days after the applicant’s “transfer”, questioning the whereabouts of the UMR for December 1993, which would show the status of the unit vacancies at the time of the order.

Counsel states that there was no valid position for the applicant in the 3d JAG on 14 November 1993 or any other time until he asked to transfer to the Retired Reserve on 1 April 1994.  Counsel states that there was no valid position at the 3d JAG or any other TPU for which he was qualified, saying that the information that the applicant accepted a temporary attachment to the 3d JAG and thus removed himself from eligibility for transition benefits because he was accruing time toward his 20 year letter and to await the results of the promotion board is wrong.  Counsel states that he qualified for his 20 year letter several years before the dates mentioned herein (1993, 1994?).  Counsel implies that the 94th ARCOM assigned personnel from inactivating units to positions in units that were not inactivating, and assigning personnel in those units to overstrength positions in order to defeat the purpose of the SSP.

Counsel comments on the affidavit from the 3d JAG UA, who believed that the applicant was in an overstrength status with that unit.  Counsel questions the validity of the publication date of the order transferring the applicant to the         3d JAG effective 14 November 1993.  Counsel states that the issue of legal review has to be addressed, that there was no legal review by any attorney in the 94th ARCOM.  He states that a verbal “boot strap” type argument that the applicant was wrong, and the 94th ARCOM right is improper and must be disregarded.  Counsel raises numerous matters which he believes should be investigated.   

On 30 November 1994 the Assistant Secretary of Defense provided to the service secretaries implementing guidance for the Selected Reserve transition programs authorized in the National Defense Authorization Act for Fiscal Year 1993, Public Law 102-484, and implemented in a 11 March 1993 policy memorandum from the Deputy Assistant Secretary of Defense for Manpower and Personnel Policy.  This guidance incorporated statutory changes effected in the National Defense Authorization Acts for FY 1994 and FY 1995 and policy modifications necessary to ensure the effective operation of Reserve transition programs through the force drawdown period.

In effect, Public Law 102-484 authorized special separation pay for selected Reserve members who are discharged or transferred from the Selected Reserve because of unit inactivation or reorganization from 23 October 1992 through       30 September 1995.  This pay was authorized those soldiers with 20 or more years of qualifying service for retired pay who lose their position because of unit inactivation or reorganization, contingent upon the soldier’s request for transfer to the Retired Reserve. 

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(s), it is concluded:

1.  In his 10 May 1994 memorandum to the 3d JAG commander requesting transfer to the Retired Reserve with SSP, he stated that the 41st JAG was deactivated in October or November 1993 (In his 10 March 1999 affidavit, however, he states that he was informed on several occasions by the 3d JAG commander of extensions of the inactivation order), and that he accepted a temporary attachment to the 3d JAG while hoping to obtain his 20 year letter so he could qualify for the transition program.  He also stated that he was not aware that he was not selected for promotion to Colonel until late February 1994.  He did state that he did not receive a written order assigning him to the 3d JAG.

2.  The applicant did not complete 20 years of qualifying service for retired pay until 10 August 1993, and could not have been aware of this until sometime after 2 December 1993, belying counsel’s contentions that the applicant qualified for his 20 year letter several years prior to the 1993/1994 time frame.
  
3.  On 1 April 1994, the applicant submitted a request for transfer to the Retired Reserve with SSP.  His request indicated assignment to another unit was not available.  His request indicated that he was a member of the 3d JAG at that time. 

4.  The applicant was assigned to the 3d JAG Detachment effective                   14 November 1993.  Whether or not he received the order assigning him is moot. The 3d JAG offered him a position in that unit and he accepted, as indicated in the 7 July 1994 94th ARCOM staffing paper.  He knew that he had been assigned to the 3d JAG as shown by his statements that he accepted a temporary attachment to the 3d JAG and that to date (10 May 1994) he had not received any written orders assigning him.  He also believed, again according to this same memorandum, that his unit, the 41st JAG had been deactivated in October or November of 1993, even though the inactivation date was later changed to        31 January 1994.  The applicant had to be assigned somewhere.   

5.  The Board notes that the applicant stated that members of the applicant’s former unit, the 41st JAG, continued to drill at Westover AFRC for at least one year after he retired.  The implication to this Board is that these soldiers were in the same situation as the applicant, were assigned somewhere, but continued to drill in the same location as before, prior to the inactivation of the unit.  The Board believes that the applicant did not have to travel 155 miles to be a drilling member of the 3d JAG Detachment.  Whether or not he attended unit training assemblies is not known.  

6.  This Board believes that the applicant, upon notification of the inactivation of the 41st JAG,  accepted an offered assignment to the 3d JAG Detachment, and that he did so in order to await the results of 1993 Colonel selection board, and while pending his 20 year letter, or at least confirmation that he had 20 qualifying years of service for retired pay.  The 94th ARCOM order shows that he was assigned to a valid position and the First U.S. Army UMR for the 3d JAG shows likewise.     

7.  The Board believes that once the applicant received notification that he had not been selected for promotion and was aware that he had 20 qualifying years of service for retired pay, he applied for transfer to the Retired Reserve, in advance of his pending MRD, in order to obtain SSP.  The Board believes that he was assigned to the 3d JAG, occupying a valid position, and consequently, did not qualify for award of special separation pay. 

8.  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

__mdm___  __aao___  ___ewl__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020262	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990805	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 128.00		
2.		
3.		
4.		
5.		
6.