PROCEEDINGS

	IN THE CASE OF:

	BOARD DATE:        9 September 1999
	DOCKET NUMBER:   AR1999026851

	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	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Ms. Erin J. Olmes		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Christopher J. Prosser		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 that his voluntary resignation from the IRR (Individual Ready Reserve) be revoked and that he be reinstated so that he can continue to draw his annual VSI (Voluntary Separation Incentive) payments.  He states, in effect, that he tendered his voluntary resignation from the USAR because he no longer felt he was involved in any meaningful way in the Reserves.  He notes that he contacted officials at the Army Reserve Personnel Command who assured him that his continued receipt of his annual VSI payments were not tied to his continued status as a Reserve officer in the IRR.  However, following his resignation he was notified by officials from the Defense Finance and Accounting Office that he was no longer eligible for payment of the VSI annuity because of his voluntary discharge from the Army Reserve.  He states that his initial discharge from the IRR was voided and he was transferred to the Retired Reserve but that transfer was also voided and he was ultimately discharged from the IRR effective 22 June 1998.  The applicant states that he was told that only this Board could “fix the problem.”  In support of his request he submits documents associated with his honorable active duty service and a brief prepared by his civilian legal counsel.

3.  Records available to the Board indicate the applicant entered active duty as a USAR officer on 24 September 1974 at the age of 22.  In 1985 he was promoted to the grade of major and on 23 July 1990 signed an oath of office as a Regular Army officer.

4.  In December 1991 he was notified that he had been passed over for promotion to the grade of lieutenant colonel for the second time and would be discharged no later than 1 April 1992 unless he was selected for, and agreed to serve in his present grade (major) until he reached retirement eligibility.  The applicant was selected for continuation and on 10 January 1992 agreed to serve under that provision.

5.  On 21 January 1992, following an announcement by the Department of the Army of the Voluntary Separation Incentive/Special Separation Bonus (VSI/SSB) program the applicant tendered his resignation and requested separation under the VSI.  His request acknowledged that he agreed “to serve in the U.S. Army Reserve for the entire period [he received the] VSI.”  His request was approved and on 4 May 1992 the applicant was honorably discharged from active duty with entitlement to an annual VSI payment of slightly more than $19,000 for 35 years.

6.  On 5 May 1992, the day after his release from active duty, the applicant was appointed as a USAR major for “an indefinite term” and on 15 October 1993 was promoted to lieutenant colonel.

7.  The applicant was notified in September 1996 that he had been considered but not selected for promotion to the grade of colonel.  Although documents associated with the applicant’s voluntary resignation of his USAR commission and voluntary request for discharge from the USAR were not in records available to the Board, the Army Reserve Personnel Center published an order on 
17 March 1997 honorably discharging the applicant from the Army Reserve noting that “all Reserve of the Army and Army of the United States appointments are terminated” effective 17 March 1997.

8.  The applicant contacted officials at the Army Reserve Personnel Center in May 1998 noting that he had been given erroneous information regarding his entitlement to continued VSI payments and request that the discharge order be revoked and that he be placed in the Retired Reserve.  His request was granted and on 7 May 1998 the discharge order was voided and he was transferred to the Retired Reserve effective 8 May 1998.

9.  However, on 22 June 1998 the order transferring the applicant to the Retired Reserve was revoked and a new order discharging the applicant from the Army Reserve was published with an effective date of 22 June 1998.  He was 46 at the time.

10.  The applicant’s attorney, in a brief submitted with the application, contends that “the damaged ego of a Department of Defense employee is to blame for the Army depriving a distinguished, decorated soldier of more than half a million dollars in retirement benefits earned from over seventeen years of honorable service to his country.”  The attorney notes, in effect, that the Army Reserve Personnel Center was attempting to rectify the applicant’s situation by transferring him to the Retired Reserve but those attempts were thwarted when a civilian employee in the Reserve Personnel Center’s transition office became involved.

11.  Army policy and the 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 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 will 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 of the Retired Reserve.

12.  Army Regulation 140-10 states that soldiers not sooner removed for another reason will be removed from the Army Reserve when they reach maximum age. Removal date for field and company grade USAR officers will be the last day of the month in which they reach age 60.

CONCLUSIONS:

1.  The evidence indicates that both the applicant and officials at the Army Reserve Personnel Center (ARPERCEN) recognized that the voluntary separation action did ultimately affect the applicant’s entitlement to his annual VSI payments.  The fact that the individual contacted ARPERCEN and that ARPERCEN attempted to rectify the situation by voiding and republishing orders supports this conclusion.

2.  The Board contends that it is unreasonable to believe that an individual would tender his voluntary resignation knowing that such an action would suspend his annual VSI annuity payments.

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

4.  The applicant’s record confirms that he served honorably for 17 years on Active Duty and was entitled to the VSI upon his separation in 1992 and appointment in the USAR.  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.

5.  The Board contends that in view of the circumstances, and in the interest of justice, the applicant’s status in the Individual Ready Reserve should be restored by voiding the 1998 separation action, that his VSI payments be resumed and that any annual payments which were lost as a result of his separation be paid retroactively.

6.  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 applicant’s 22 June 1998 honorable discharge from the Army Reserve null and void;

b.  by reinstating the applicant in the Individual Ready Reserve in the grade of lieutenant colonel without any loss of creditable service;

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

d.  by retroactive payment of any lost VSI payments, which resulted from the separation action.

BOARD VOTE:  

____ejo_  ___inw__  __cjp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999026851	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990909	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.