MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  13 July 2000
	DOCKET NUMBER:  AR2000034947

	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. Carl W. S. Chun		Director	
	Mr. David E. Weightman		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. James E. Anderholm		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:  Reinstatement to his previous active duty status with full back pay and allowances, or in the alternative, payment of the Voluntary Separation Incentive (VSI).

APPLICANT STATES:  He was led to believe he would not be selected for the reduction-in-force (RIF).  The RIF process was misrepresented to him at the time and in effect, he would have opted for the VSI instead of accepting a discharge with separation pay.  He submits a comprehensive submission of pertinent documents in support of his application.

COUNSEL CONTENDS:  Counsel concurs with the applicant’s contentions and requests that all reasonable doubt be resolved in the applicant's favor.

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

The applicant was appointed in the Reserve as a second lieutenant from the Reserve Officer Training Corps, Field Artillery, effective 18 November 1978.  He was entered on extended active duty effective 28 February 1979.  He attained the rank of major effective 1 February 1991.  He was appointed in the Regular Army effective 9 January 1992.

He was notified of the pending fiscal year 1992 (FY92) RIF board and of his options concerning the voluntary separation incentive programs supporting Army drawdown.  The notification to all concerned by Departmental message on 3 January and 2 March 1992 indicated that majors in the RIF zone of consideration were encouraged to contact their branch manager for a risk assessment concerning the FY92 RIF consideration.  There is no record of contact with his branch manager concerning risk for the RIF.  He did not apply for voluntary separation and the VSI by the suspense date set for this purpose.

He was selected for involuntary separation by the FY92 RIF board, which convened on 16 March 1992.  He was notified by letter dated 
29 May 1992 of confirmation that he was selected for involuntary separation from active duty by the FY92 RIF board, and that he must separate by 29 September 1992.  He acknowledged the notification of his selection for the RIF and the separation date was not extended.

His permanent change of station transfer from Fort Carson, Colorado to Alaska was cancelled.

His evaluation reports show he was a center of mass officer.

He was honorably released from active duty effective 29 September 1992, based on RIF selection.  He was credited with13 years 7 months and 2 days of active duty, and he received $55,337.76 full separation pay.  He was transferred to the Reserve Control Group.

There is no record of his participation while in the Reserve.  He was twice considered and not selected for promotion to lieutenant colonel and was transferred to the Retired Reserve effective 4 August 1999, with less than 20 years of qualifying service.

The RIF was authorized by Title 10, United States Code, as determined by the Army Secretary.  RIF action was taken to reduce the force in order to meet the strength needs of the Army.  Officers selected for the RIF were those officers not considered best qualified for retention on active duty.  Those considered by the FY92 board were majors from the Army competitive category with a date of rank between 2 July 1989 and 1 March 1992, with less than 15 years of active service as of 
30 September 1992, whose names are not on a promotion list, who are not eligible for retirement, who are not within 2 years of retirement eligibility, and who do not have approved separations in FY92.  The number of officers selected for the RIF was dependent on the number of officers who requested voluntary separation under the provisions of the Army drawdown.  RIF selection was final.  There is no Departmental appeal process except application to this Board.

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 SSB (Special Separation Benefit) and the VSI (Voluntary Separation Incentive) are available to members who are retainable on active duty and prior to selection for an involuntary separation, but who voluntarily separate from active duty under the provisions of the voluntary separation incentive program in support of the Army drawdown.

Requests for voluntary separation under this program and the SSB or VSI must have been submitted prior to selection for involuntary separation, i.e., the RIF.

Generally, to qualify for the SSB individuals must have served on active duty for more than 6 years prior to enactment of this law, must have served at least 5 years of continuous active duty preceding separation, those who are in a Reserve component must be on the active duty list, must not be approved for payment of the VSI, and must meet such other requirements as the Secretary may prescribe, i.e., not in a shortage specialty and agreement to serve in the Ready Reserve for not less than 3 years in addition to any remaining statutory service obligation following separation from active duty.  The SSB is a lump sum separation pay equal to 15 percent of the product of the years of active service and 12 times the monthly basic pay authorized at the time of separation.

Generally, to qualify for the VSI individuals must have been released from active duty for voluntary appointment, enlistment, or transfer to a Reserve component, for the period of time the member serves in a Reserve component, if they served on active duty for more than 6 but less than 20 years prior to enactment of this law, if they served at least 5 years of continuous active duty prior to the date of separation, if they are Reservists but on the active duty list, and if they meet such other requirements as the Secretary may prescribe, e.g., not in a shortage specialty.  Individuals who qualify for the VSI may also qualify for the SSB.  The VSI is an annual payment equal to 2.5 percent of the monthly basic pay received on the date appointed, enlisted, or transferred to the Reserve, multiplied by 12, and multiplied again by the member's years of service.  The annual payment will be made for a period equal to the number of years that is equal to twice the number of years of service of the member.

To qualify for the VSI/SSB an officer must have requested voluntary separation prior to selection for the RIF.

Currently, the full separation pay authorized to those officers who are involuntarily separated based on selection for the RIF is 10 percent of 12 times the amount of monthly basic pay to which entitled at the time of separation from active duty, times the active service time.  Qualifications for this separation pay are also prescribed by the DODPM.

Title 10, United States Code, section 1174a (Notes) provides a review and remedy for ineffective counseling of officers discharged following selection by early discharge boards.  It states, "The review under this section shall be designed to evaluate the effectiveness of the counseling of the officer before the convening of the board to ensure that the officer was properly informed that selection for discharge or other separation from active duty was a potential result of being within the group of officers to be considered by the board and that the officer was not improperly informed that such selection in that officer's personal case was unlikely."  It provides that if the secretary concerned determines that ineffective counseling occurred, the secretary would provide the member the option to participate in the Special Separation Benefits program, the Voluntary Separation Incentive program, or the early retirement program, for which the officer meets all eligibility criteria.

The early retirement program, based upon completion of between 15 to 18 years of service, depending on rank and specialty, was not implemented until 1 April 1993.

On 20 May 1999 the Chief, Military Personnel Law Branch, Administrative Law Division, Office of the Judge Advocate General expressed the opinion that legal precedent does not support the granting of the requested relief based on the applicant’s claim that there was a “misrepresentation of information” by the Government.

On 13 December 1999 counsel acknowledged the opinion and stated, among other things, that this officer relied reasonably upon assertions made by his assignment officer, to his detriment, and his post service problem of trying to get to retirement.

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 view of the circumstances in this case, the applicant is not entitled to correction of his records to show reinstatement to his previous active duty status, or to show he requested and received a voluntary separation in support of the Army drawdown, or that he is entitled to the VSI.  He is also not entitled to an early retirement plan in lieu of the RIF.  He has not shown error or injustice, or any other satisfactory justification for the relief he now requests.

2.  His contentions, and those of counsel, have been noted by the Board; however, they are not sufficiently supported by his record, his application, or the evidence of record.  There is no error or injustice in his case.  The Board notes that even though they may have had competitive records, many officers were not selected for retention; that it has not been shown that he was misled concerning his risk for selection for the RIF; that the number of individuals selecting voluntary separation under the drawdown program had an impact on the number of those selected for the RIF, and it can be reasoned, theoretically, that he may have been selected for the RIF because he did not apply for the voluntary separation.  It is also noted that he was properly considered for the RIF, and that he has not shown he was denied information or consideration, or that he was misled concerning the RIF.

3.  After having the same opportunity as all other officers to apply for a voluntary separation and the VSI/SSB prior to consideration for the RIF, and not having been misled concerning his risk for the RIF, he declined to so of his own volition. He should not now be able to change his mind concerning voluntary separation and receive the higher monetary benefits given to others who made the tough decision to leave the Army at that time.

4.  The Board notes that he is not eligible or entitled to the early retirement program.

5.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

6.  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 or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  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

__jp___  ___mm___  __ja__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000034947	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000713	
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.	131.00	
2.		
3.		
4.		
5.		
6.