PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           20 March 2001                   
	DOCKET NUMBER:   AR2000036022

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. William D. Powers		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 he be authorized benefits under the Selected Reserve Transition Benefits (SRTB) program, award of 1000 additional retirement points, that he be authorized retired pay immediately, and that he retain the rank of lieutenant colonel (LTC).

3.  The applicant states that his command deliberately and systematically denied himself and others the benefits of the SRTB program and a fair opportunity to participate in all reserve activities.  This extinguished his ability to obtain additional retirement points and full retirement.  He was placed in the Individual Ready Reserve (IRR) prematurely and thereafter forced prematurely into the Retired Reserve.  Supporting evidence is as listed on the DD Form 149.

4.  The applicant's military records are not available.  The information contained herein was obtained from alternate sources.  

5.  The applicant was born on 6 December 1949.  He was commissioned in the U. S. Army Reserve (USAR) in December 1972.  

6.  Effective 7 June 1993, the applicant was assigned to the 1st Brigade, 75th Division in an overstrength position as a result of unit reorganization.  Apparently, he and others were briefed on the SRTB program and that all overstrength personnel were eligible.  It was made clear that overstrength personnel could make application at any time during the eligibility period, i. e., through September 1995, prior to receiving a valid assignment.  He apparently received a letter dated 19 November 1993 stating he was qualified for benefits under the SRTB, subject to certain conditions and a suspense of 20 December 1993.  On 17 December 1993, he apparently checked to ensure he had all the necessary forms to submit but was then advised that the unit was not accepting or processing applications.  

7.  The applicant’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 22 July 1994.

8.  On 28 August 1994, apparently after several changes of opinion as to whether or not he was in an overstrength position and whether or not his unit would process applications for SRTB, the applicant requested in writing Reserve Special Separation Pay (RSSP) under the SRTB.  

9.  The applicant’s request for SRTB was denied and on 7 September 1994 he was assigned to 3d Brigade, 75th Division, Dallas, TX.  However, apparently when he later contacted the commander of his new assignment he was informed that he was not assigned to that unit and further advised that there were no major slots available in the unit.

10.  On 27 July 1995, the applicant filed a complaint with the Department of the Army Office of the Inspector General (IG) concerning his unit’s improperly denying him SRTB.

11.  On an unknown date the applicant was notified that he had been selected for promotion to LTC.  On 1 September 1995, he was reassigned to the IRR by reason of being promoted to a grade exceeding vacancy.  On an unknown date but probably on or about 6 September 1996, he was transferred to the Retired Reserve.

12.  On 8 November 1998, the U. S. Army Reserve Command IG substantiated the applicant’s allegation that he was improperly denied SRTB.  The IG acknowledged that his case was complicated by the fact he continued to participate in inactive duty training beyond the 12 months he was in an overstrength position and received pay and additional retirement points and by the fact he voluntarily transferred to the IRR to accept promotion to LTC. 

13.  In the processing of this case, an advisory opinion was obtained from the Office of the Chief, Army Reserve (OCAR).  OCAR recommended that no adjustment be made to the applicant’s retirement points based on the fact that there was no indication that duty was performed for award of the points.  OCAR was awaiting a review of the SRTB by The Judge Advocate General before providing a further opinion on the applicant’s request.

14.  The interim advisory opinion was provided to the applicant for comment or rebuttal.  The applicant rebutted the opinion and amended his application to request 1000 retirement points that he should (and would) have earned if not forced from the reserves; immediate placement in a retired pay status with retirement in the rank of LTC with 24 years service; retirement points for phases 4, 5, and 6 of the Command and General Staff College; plus full benefits of the SRTB modified to account for the additional points requested and paid in full in one lump sum within 30 days from the Board’s positive action.  If his commander would have granted him the SRTB at any one of his several attempts to obtain the SRTB, he would have been satisfied but that was then, not seven years later.

15.  On 8 February 2001, OCAR provided a final opinion.  OCAR noted that there was no substantiation of performance of duty to support the award of additional retirement points and that retirement points are not awarded as compensation for a perceived or real unrelated error on the part of the USAR.  OCAR noted that there was no precedence to award retired pay prior to age 60.  OCAR noted that the IG substantiated the applicant’s allegation that he was denied SRTB and therefore recommended:  (a) that the applicant’s calculation for transition pay be 

based on his years of service and base pay effective 8 June 1994; (b) that any pay he received for performance of duty after 8 June 1994 be deducted from the transition benefit payments; (c) that retirement points earned by him after 8 June 1994 not be creditable for retired pay at age 60; (d) that his retired pay at age 60 be calculated based on the rank of major; and (e) that his records be corrected to reflect that he was transferred to the Retired Reserve effective 8 June 1994 in the rank of major.

16.  A copy of the final advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

17.  The SRTB Program is covered by Public Law 101-105 as amended by Public Law 103-160 and subsequent implementing guidance.  In 1994, RSSP monetary benefits were authorized in three types of situations.  Two of those were if an individual’s position was lost through unit inactivation, relocation or reorganization.  The differentiation was whether or not an individual had achieved 20 qualifying years of service and was eligible for retirement.  The third possibility was an individual who was separated by result of a Qualitative Retention Board, Selective Retention Board or removed for Maximum Years of Service.  In 1994, the applicant had over 20 qualifying years and there is no indication that he was being removed by any sort of Board action.  Individuals with 20 qualifying years service who lost their position through unit inactivation, reorganization or relocations were eligible for transfer to the Retired Reserve and could receive up to 5 annual payments of RSSP, based on years of service and points accumulated.  Transfer to the IRR does NOT qualify for receipt of RSSP, whether involuntary or not.  Certain documentation had to be completed and forwarded to the Army Reserve Personnel Command. 

CONCLUSIONS:

1.  The IG and OCAR acknowledged that the applicant had been improperly denied SRTB.  His unit reorganized and he was placed in an overstrength position on 7 June 1993.  He should have been eligible to request SRTB and assignment to the Retired Reserve on 8 June 1994; however, his unit would not let him submit for such benefits and, when he did, they denied his request without, however, assigning him to a valid position.

2.  Because the applicant was denied the opportunity to apply for SRTB and RSSP with its required transfer to the Retired Reserve, he was placed in a position to accept promotion to LTC with his subsequent required transfer to the IRR.  The Board concludes that it would not be in the interest of justice to deny the applicant a benefit (i. e., his promotion) that he obtained only because he was 

denied another benefit (i. e., SRTB and RSSP).  It would be in the interest of justice to grant him benefits under the SRTB and, as an exception to policy, allow him to retain the rank of LTC and to allow him to draw retired pay and benefits in the rank of LTC.  

3.  The Board concludes that any retirement points and pay the applicant earned after the effective date he should have been transferred to the Retired Reserve in connection with the SRTB Program (i. e., 8 June 1994) were earned in good faith and he should retain that pay and credit for those points as an exception to policy.  However, it would not be equitable to pay the applicant RSSP based on the rank of LTC.  He was a major when he should have been allowed to apply for the SRTB; it would be equitable that he be paid RSSP based upon the rank of major.  

4.  It would not be equitable to award the applicant an additional 1000 retirement points.  He did not perform duty to earn those points and had he been allowed to apply for the SRTB when he was eligible he would not have earned those points. 

5.  It would not be appropriate to authorize the applicant immediate entitlement to retired pay.

6.  In view of the foregoing and notwithstanding the advisory opinion, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing the applicant applied for RSSP benefits and transfer to the Retired Reserve effective 8 June 1994 and that his application was approved.

2.  That the applicant be assigned to the Retired Reserve effective 8 June 1994 with eligibility for 5 annual payments of RSSP based on the rank and grade of major, 0-4.

3.  That, as an exception to policy, the applicant’s records continue to show he received credit for any retirement points earned after 8 June 1994 and before the date of this Board’s decision and that he retain any pay he earned after 8 June 1994.

4.  That the applicant retain his rank and grade of LTC, 0-5 as an exception to policy and, upon reaching age 60, he be entitled to retired pay and benefits in the rank and grade of LTC, 0-5.

5.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__fne___  __rjw___  __wdp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000036022	
SUFFIX		
RECON		
DATE BOARDED	20010320	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.	128.14	
3.		
4.		
5.		
6.