PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            15 December 1999
	DOCKET NUMBER:   AR1999020952

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

	Mr. Loren G. Harrell		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Mark D. Manning		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his Voluntary Separation Incentive (VSI) payments be reinstated.  

3.  The applicant states, in effect, that he was advised when he was separated from active duty that he would have to continue to serve in the Reserves in order to qualify for VSI.  At that time he joined the Army National Guard (ARNG) to satisfy this requirement.  He served in the ARNG until 1995 at which time he had served the equivalent of 20 years of service and was told he could become attached to the Retired Reserve without the loss of his VSI status.  After transferring to the Retired Reserve his VSI payments were stopped, at which point he contacted the Army’s Reserve Personnel Command (ARPERSCOM) to inquire as to why this happened.  He asked them why he had not been advised at any time during his processing for transfer to the Retired Reserve that this would result in his losing his VSI entitlement.  ARPERSCOM personnel advised the applicant that he lost the benefit because there were provisions of law which required that his VSI benefits stop once he voluntarily transferred to the Retired Reserve.  He was also advised that ARPERSCOM was powerless to change his status and he was provided a application (DD Form 149) in order to apply to this Board for relief.  

4.  The applicant’s military records show that he served on active duty for 
17 years, 3 months, and 20 days.  He was honorably separated on 24 July 1992, in the rank of sergeant/E-5, and transferred to the ARNG.

5.  The record contains a DD Form 214 (Certificate of Release or Discharge From Active Duty) issued to the applicant on his separation.  This document shows that he was honorably separated, under the provisions of paragraph 
16-8, Army Regulation 635-200, by reason of voluntary early transition program (VSI).  It also shows that the applicant was authorized VSI payments of $7,812.18 for 30 years. 

6.  On 25 July 1992, the day after his separation from active duty, the applicant entered the South Dakota ARNG in order to satisfy the requirements of the VSI program.  He served in the ARNG for 2 years, 9 months, and 21 days, until he was voluntarily transferred to the Retired Reserve, after attaining over 20 years of service.

7.  On 15 May 1995, the applicant was honorably separated from the ARNG and transferred to the USAR Retired Reserve.  The record contains a National Guard Bureau Form 22 (Report of Separation and Record of Service) which documents the applicant’s ARNG service and indicates that he had completed 20 years, 
4 months, and 7 days of total service for pay.  

8.  The applicant contacted ARPERSCOM to determine why his VSI payments had been stopped without his ever being counseled or advised.  He was informed that it was based on his voluntarily requesting transfer to the Retired Reserve and that in order for him to remain eligible for VSI payments he would have had to remain affiliated with the Ready Reserve.  The applicant was also informed that in order to correct this action he would have to apply to this Board and he was provided an application (DD Form 149) for this purpose.

9.  Army policy and Department of Defense Military Pay and Allowances Entitlements Manual (DoDPM), based on Public Law 102-190, 5 December 1991, as amended, prescribes the qualifications for entitlement to readjustment benefits for certain voluntary 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.  Headquarters, Department of the Army 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 shows that the applicant, when he discovered that his transfer to the Retired Reserve impacted his receipt of VSI payments, attempted to resolve the situation through ARPERSCOM.  In addition, it was clear that he had not been advised prior to his action that this action would cancel his entitlement to VSI payments.  Further, the Board finds it is not reasonable to believe that an individual would voluntarily transfer to the Retired Reserve knowing that such action would suspend his annual VSI payments.

2.  The evidence also shows that the only way the individual would continue to be eligible for the VSI payments were if his transfer to the Retired Reserve were voided.  The applicant has not yet reached the maximum age requirement for mandatory transfer to the Retired Reserve nor is there any medical evidence present, which would make him ineligible for continuation in the Individual Ready Reserve.  As such, the only appropriate action would be to reinstate him to the USAR, in a status that will make him eligible to receive VSI payments. 

3.  The applicant’s record confirms that he served honorably on active duty for over 17 years and was entitled to the VSI payments for 30 years upon his separation from active duty in 1992.  It would be unjust to hold the applicant to a decision he made which ultimately affected his eligibility to continue to receive his VSI payments knowing that he likely made that decision without full knowledge of the consequences.

4.  The Board concludes, in view of the circumstances, and in the interest of justice, that the applicant’s Ready Reserve status should be restored by voiding the 1995 action to transfer him to the Retired Reserve and assigning him to the Individual Ready Reserve (IRR), Control Group (Reinforcement), effective that same date, and by resuming VSI payments.  In addition, any annual VSI payments, which were lost as a result of the applicant’s transfer to the Retired Reserve, should be paid retroactively.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected in the interest of justice:

a.  by declaring the 16 May 1995 transfer of the individual concerned to the Retired Reserve null and void;

b.  by transferring the individual concerned to the IRR, Control Group (Reinforcement) of the Ready Reserve, effective 16 June 1995;

c.  by restoring his entitlement to annual VSI payments; and 

d.  by authorizing retroactive payment of any lost VSI payments, which resulted from his transfer to the Retired Reserve.

BOARD VOTE:  

___tnk __  __mdm__  ___eb___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Thomas N. Kuhn_____
		        CHAIRPERSON

INDEX

CASE ID	AR1999020952	
SUFFIX		
RECON		
DATE BOARDED	1999/12/15	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A 	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  297	128.1400	
2.		
3.		
4.		
5.		
6.