PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            14 November 2000
	DOCKET NUMBER:   AR2000040631

	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	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Terry L. Placek		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 after serving in the Regular Army for twelve years he decided to leave the Regular Army (RA) in July 1994, under the provisions of the Voluntary Incentive Program with VSI benefits.  He claims that during the transition briefing he received at the time of his release from active duty (REFRAD) he was led to believe that if he served in an Army National Guard (ARNG) unit for three years, his VSI service obligation would be satisfied. Based on this information, he enlisted with a unit in the Missouri ARNG and served for three years.  At the end of this enlistment he was honorably discharged, by reason of expiration of term of service (ETS), believing that he had satisfied the service requirement necessary to be eligible to continue to receive his VSI payments.  Since his discharge from the ARNG he has learned that he was misinformed and that he was required to remain affiliated with the Ready Reserve in order to continue to receive VSI payments.  He claims that all these problems were the result of his receiving incorrect information at his separation briefing and that it would be an injustice to deny him the rest of his VSI payments because of this misinformation.  He also contends that had he been aware that he was required to remain in the Ready Reserve in order to continue to draw VSI payments, he would have done that.  Therefore, he is now requesting that he be allowed to be reinstated in the Ready Reserve and that he be assigned to the Individual Ready Reserve (IRR), which would allow him to receive the rest of the VSI benefit that he was promised.  

4.  The applicant’s military records show that he served in the RA on active duty for 11 years, 4 months, and 16 days, and that he was honorably separated on 
31 July 1994, in the rank of Staff Sergeant/E-6, and transferred to the ARNG.

5.  The record contains a Department of Defense (DD) Form 214 (Certificate of Release or Discharge From Active Duty) issued to the applicant on the date of 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 he was authorized an annual VSI payment of $5,639.41 for 22 years. 

6.  On 1 August 1994, the day after his separation from active duty, the applicant entered the Missouri ARNG in order to satisfy the requirements of the VSI program.  On 31 July 1997, he was honorably discharged from the ARNG and the record contains a National Guard Bureau Form 22 (Report of Separation and Record of Service) which documents his ARNG service. 

7.  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.  

8.  The voluntary incentive program was designed to support the Army’s drawdown.  Headquarters, Department of the Army (DA) Message 281802Z , dated in 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.  It also stipulated that VSI annual payments would 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.  There is no evidence of record to suggest that the applicant was advised that he would lose VSI payments in conjunction with his being discharged from the ARNG.  In addition, it appears that as soon as he discovered that his discharge from the ARNG impacted his receipt of VSI payments, he attempted to resolve the situation and expressed his willingness to continue to remain affiliated with the United States Army Reserve (USAR) in the Ready Reserve.  

2.  His record confirms that he served honorably on active duty for over 11 years and that he was entitled to the VSI payments for 22 years upon his separation from active duty in 1994.  The Board finds that it is unreasonable to believe that he or any other individual would voluntarily accept a discharge from the ARNG knowing that such an action would suspend his annual VSI payments.

3.  In the opinion of the Board, 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 should be afforded the opportunity to restore his Ready Reserve status by being allowed to enlist in the USAR, with an assignment to the IRR, Control Group (Reinforcement), effective the day following his discharge from the ARNG, 1 August 1997, and by resuming his VSI payments accordingly. 

5.  In addition, the Board finds that it would be appropriate to provide the applicant any annual VSI payments, which were lost as a result of his discharge from the ARNG, 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 by affording the individual concerned the opportunity to enlist in the USAR Ready Reserve and be assigned to the IRR, Control Group (Reinforcement), with an  antedated enlistment contract effective 1 August 1997; 

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

b.  by authorizing him retroactive payment of any lost VSI payments which resulted from his discharge from the ARNG.

BOARD VOTE:  

___tlp___  ___slp___  __mw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Shirley L. Powell____
		        CHAIRPERSON

INDEX

CASE ID	AR2000040631	
SUFFIX		
RECON		
DATE BOARDED	2000/11/14	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1997/07/31	
DISCHARGE AUTHORITY	NGR 600-200 C8	
DISCHARGE REASON	ETS	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  292	128.0900	
2.  303	129.0100	
3.		
4.		
5.		
6.