PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           5 December 2000                   
	DOCKET NUMBER:   AR2000042182

	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:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		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 amended his application on 10 August 2000 to request, in effect, that he be authorized award of Reserve Special Separation Pay (RSSP).  He also requests that he retain the rank of lieutenant colonel (LTC).

3.  The applicant states that he was arbitrarily and involuntarily reassigned out of his unit of assignment, the 343d Combat Support Hospital (CSH).  This occurred after he was assigned overstrength without a specialty-designated position from 8 or 9 June 1994 through 10 June 1995.  His reassignment orders were later amended to correct the effective transfer date, but the actual reason for transfer should properly have been “Involuntary Transfer by Direction of Unit Commander.”  There was purposeful managerial malpractice and abuse of authority in not accepting and approving his application for Selective Reserve Transition Benefits.  He understands that he will not be able to be awarded any retirement points after the date he is transferred to the Retired Reserve and that he would be paid RSSP based on the rank of major.  However, he reiterates that he is not willing to have his present grade of LTC revoked in order to receive the RSSP.  Supporting evidence is as listed on the enclosure to the DD Form 149.

4.  The applicant's military records show that he was born on 10 September 1947.  He was commissioned in the U. S. Army Reserve (USAR) in June 1972 and entered active duty in July 1972.  He was released from active duty in July 1974.  On 2 March 1987, he was assigned to the 343d Evacuation Hospital (WTLJAA), Fort Hamilton USAR Center, Brooklyn, NY. 

5.  Permanent Orders F-52-6, Headquarters, USARC dated 18 February 1993 reorganized the 343d Evacuation Hospital into the 343d CSH (WTLJAA) effective 17 September 1993.

6.  Orders 155-97, Headquarters, 77th USARC, dated 13 September 1993 reassigned the applicant from the 343d CSH (WTLJAA) to the 343d CSH (HUB) (WTLJT0) effective 17 September 1993 and placed him in position number 9992 (awaiting a position).

7.  On 6 July 1994, the applicant was notified that he had been selected for promotion to lieutenant colonel (LTC) by a Standby Advisory Board (STAB) under the criteria established for the mandatory board which met in 1993.  His date of rank would be 3 June 1994 pending Senate confirmation.

8.  An undated, unwitnessed Addendum D to Personnel Action form, DA Form 4187, shows that the applicant understood that due to the inactivation/reorganization/relocation of his unit, he must be reassigned.  The election of options section is not available.  

9.  On 19 May 1995, a Request for Reserve Component Assignment or Attachment, DA Form 4651-R was completed in which the applicant requested transfer to the USAR Control Group (Reinforcement).  The applicant asserts that items 4e and 8, which note that the applicant was transferred to accept promotion to LTC, did not contain these entries at the time he signed the DA Form 4651-R.

10.  Orders 95-174-054, USARC, dated 9 June 1995 reassigned the applicant from the 343d CSH and assigned him to the Retired Reserve, due to promotion to grade exceeding vacancy, effective 11 May 1995.

11.  Orders 95-183-008, USARC, dated 22 June 1995 amended Orders 95-174-054 to read assigned to the Individual Ready Reserve (IRR) effective 10 June 1995.

12.  Orders 95-211-014, USARC, dated 2 August 1995, revoked Orders 95-183-008.

13.  Orders 95-211-020, USARC, dated 2 August 1995, reassigned the applicant from the 343d CSH and assigned him to the IRR, due to individual’s request, effective 11 May 1995.

14.  Orders 95-256-041, USARC, dated 5 October 1995, amended Orders           95-211-020 to read effective date 10 June 1995.

15.  In December 1996, the applicant requested an inquiry into his eligibility for RSSP.  On or about 21 September 1998, Headquarters, USARC recommended approval of the Transition Benefits Program for the applicant, stating that attached documentation supported his position that he should have been offered the benefits while still assigned to the unit.  USARC observed that the applicant had been overstrength for at least three years prior to its reorganization on           13 September 1993; he was assigned to the new unit awaiting a position; there were no documents to prove he was overstrength after the reorganization; he was selected for promotion on 6 July 1994; and he was transferred to the IRR and subsequently promoted to lieutenant colonel, two years after the reorganization and one year after being notified he was selected for promotion to LTC.

16.  On 29 April 1999, the Office of the Chief, Army Reserve (OCAR) returned the request without action, stating that the applicant did not present sufficient evidence to determine if he were eligible for RSSP but he could apply to the Board for relief.  OCAR recommended that if he did apply to the Board, he should present a thoroughly documented case on the reasons he feels he is entitled to RSSP and address the circumstances surrounding his promotion.  OCAR recommended he address the circumstances surrounding his promotion because his transfer to the IRR seemed to coincide with his selection for promotion, giving an appearance that he may have transferred to accept his promotion.
17.  On 11 May 1999, the applicant rebutted the observations noted in USARC’s 21 September 1998 endorsement of his request for RSSP.  He stated that he was not overstrength for the three years preceding the reorganization.  His Personnel Qualification Record (PQR) may have shown that but the 343d Evacuation Hospital/CSH used the PQR as a political instrument to manipulate personnel positions rather than as a record to exhibit accurate personnel information.  His Officer Evaluation Reports show he was in a position.  He was never informed that after the reorganization he was assigned to a 9992-coded  position (awaiting a position) and did not know until at least 9 June 1994 that he was in any position other than Chief, Pharmacy.  The observation that no documents proved he was overstrength was contradicted by the previous observation that he was awaiting a position.  He was not selected for promotion 
on 6 July 1994.  A STAB selected him for promotion in 1994 under the 1993 Army Medical Department (AMEDD) criteria; however before those results were released he had been selected for promotion by the 1994 AMEDD Mandatory Promotion Selection Board.  The STAB results were received in July 1994.  The observation that he was transferred to the IRR and subsequently promoted to LTC is misleading.  He was not aware he had been wrongly transferred to the Retired Reserve until he received Orders 95-174-054.  He should have been promoted to LTC up until at least 5 June 1994, when he was still in a major’s position but the proper steps were not taken.  

18.  On 4 April 2000, the 77th Regional Support Command Office of the Inspector General (IG) informed the applicant that it could substantiate that several administrative blunders caused him not to initially be entitled to those (RSSP)  benefits and informed him that a Mr. V___ would assist him with his application to the Board.

19.  Mr. V___ was the former Staff Administrative Assistant at the 8th Medical Brigade, the next higher headquarters over the 343d CSH.  During the period May 1994 through June 1995, he was tasked to monitor excess soldiers as well as other personnel who were eligible for entitlements under the Selected Reserve Transition Benefits Program (SRTBP).  Mr. V___ had noted that there was a valid requirement for the applicant’s area of concentration and grade; however, another Pharmacy Officer was positioned in his place on or about        9 June 1994.  Thus, the applicant was in an excess position from 9 June 1994 through 10 June 1995, which then made him eligible for monetary transition benefits.  When the issue of SRTBP application was initiated, he suggested that the applicant coordinate with a Mr. M___; however, the applicant was met with hostility and antagonism.  Additionally, Mr. V___ stated that there was the complicated political situation of the unit playing some kind of “slotting game” with the applicant without his knowledge, as well as with other personnel.  The unit would put him in the slot and then put him in excess, and again put him in the slot and then again put him in excess, all of which made it difficult to determine his actual position designation.  Mr. V___ further stated that the 343d CSH Commander, after being “ordered to do so by Mr. G___,” informed the applicant in March or April 1994 that the applicant would have to exit the unit.  Mr. M___, however, informed the applicant that he would place the applicant in an overstrength status as of 8 or 9 June 1994 and not remove him from the unit.  It was only when the 343d CSH Commander accidentally discovered the applicant was still in the unit that steps were taken to remove him, without his knowledge and without assisting him in applying for RSSP.   Mr. M___ then prepared a DA Form 4651-R, which initiated a fiasco of subsequent catastrophic events of which the applicant’s lost opportunity to receive SRTBP benefits was one.

20.  In the processing of this case, an advisory opinion was obtained from the Transitions and Separations Program Manager, U. S. Army Reserve Personnel Command (AR-PERSCOM).  (The opinion was obtained prior to the applicant modifying his application).  AR-PERSCOM noted that the SRTBP is covered by Public Law 101-105 and amended by Public Law 103-160 and subsequent implementing guidance.  In 1995, 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 1995, 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, 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 AR-PERSCOM.  The documentation provided by the applicant appeared to be incomplete and the multiple orders confusing.           AR-PERSCOM noted that they found no indication that the applicant’s unit was inactivated, reorganized (causing him to lose his position) or relocated.  He was promoted past the authorized grade available.  AR-PERSCOM noted that while there was strong evidence of egregious mismanagement on the part of personnel in the applicant’s unit, their acts did not mitigate the fact that he did NOT meet the requirements for RSSP.

21.  The applicant rebutted the advisory opinion.  He noted again that he requested assignment to the Retired Reserve effective 10 June 1995 and retroactive award of the RSSP.  He noted that his inquiries showed that the unit’s commander requested application for RSSP for himself but did not ensure that any RSSP application information was transmitted to his own unit troops.  He reiterates that the 343d Evacuation Hospital was downgraded to a CSH in September 1993 and that the 343d CSH would be deactivated in the near future. At the time he did not understand that transfer to the IRR did not qualify for RSSP because no one briefed him on his eligibility for the RSSP.  He effected the amendment of his orders to be assigned to the IRR because he wished to remain active in the USAR and, as far as he understood, his only recourse in order to remain active was to transfer into the IRR.  Obviously, had he been properly counseled and correctly informed that transfer to the IRR would make him ineligible for the RSSP, he would have remained in the Retired Reserve.  

22.  On 15 September 2000, OCAR was contacted by an analyst with the Board to discover why they had determined in 1998 that the applicant had “not presented sufficient evidence or documentation…to determine if he was eligible for such benefits.”  The action officer for that 1998 response is no longer available.  His successor stated she was pretty sure the determination that there was insufficient evidence was made because there was no completed and signed DA Form 4187 and Addendum D available.

23.  On 28 September 2000, AR-PERSCOM was contacted by an analyst with the Board to discover why they determined the applicant did not meet the requirements for the RSSP.  The office that wrote the advisory opinion stated that the analyst would have looked for evidence, such as orders, to show that the unit had been inactivated, relocated, or reorganized.  If that had been available, the analyst would have looked for a DA Form 4187, an Addendum D, and orders authorizing the applicant transition benefits, code XA (loss of unit position due to unit inactivation/reorganization/relocation; five annual payments authorized).

CONCLUSIONS:

1.  The Board agrees with the 77th Regional Support Command IG and           AR-PERSCOM that several administrative blunders occurred in this case.  

2.  The evidence of record confirms that the applicant’s unit did reorganize on   17 September 1993.  It also shows that the applicant was then assigned from the 343d CSH (WTLJAA) to the 343d CSH (HUB) (WTLJT0) effective 17 September 1993 and placed in position number 9992 (awaiting a position).  Mr. V___, assisting the applicant at the request of the 77th Regional Support Command IG, has stated that the unit played a “slotting game” with the applicant as well as with other personnel.  The unit would place the applicant in a position, then take him out, then place him a position, then take him out, making it difficult to determine what his actual position designation was.  Mr. V___ also verifies that from 9 June 1994 until 10 June 1995 the applicant was placed in an overstrength position so as to “hide” him from the unit commander.  

3.  The Board concludes that, since the applicant was slotted as awaiting a position on 17 September 1993 and he was definitely placed in an overstrength position on 9 June 1994 with the unit playing “games” with his positioning between those two dates, he was effectively overstrength for the entire period.
4.  Mr. V___ also stated that the applicant missed the 8th Medical Brigade’s SRTBP counseling session and was to have been counseled by the unit commander who, however, failed to counsel him.  Mr. V___ stated that the DA Form 4651-R prepared by Mr. M___ initiated a fiasco of subsequent catastrophic events of which his lost opportunity to receive SRTBP benefits was one.  

5.  On 21 September 1998, USARC recommended approval of the applicant’s request of Transition Benefits Program, stating that he should have been offered the benefits while still assigned to the unit.  OCAR returned the request without action, stating that there was insufficient evidence or documentation to determine if he was eligible for such benefits.  On 15 September 2000, OCAR stated that this determination was most likely made because there was no properly prepared DA Form 4187 and Addendum D.  The Board concludes that there was no properly prepared DA Form 4187 and Addendum D (or orders, as required by AR-PERSCOM) because the applicant was not properly briefed on the SRTBP.  The evidence also shows that his unit, for whatever reason, was antagonistic towards him and thwarted his attempts to initiate an SRTBP application.

6.  Although the applicant has stated that he was eligible to have been promoted to LTC until 5 June 1994, when he was still in a major’s position, the Board noted above that he was effectively in an overstrength position and so he could not have been promoted to LTC.  The Board believes his contention that he requested assignment to the IRR only because he wished to remain active in the USAR and not because he wished to accept his promotion.  The Board also believes his contention that had he been properly counseled he would have elected transfer to the Retired Reserve with RSSP benefits and so have foregone his promotion.

7.  However, because of the numerous administrative errors for whatever reason, the applicant was denied the opportunity to apply for RSSP with its required transfer to the Retired Reserve.  This placed him in a position to accept promotion to LTC.  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 vindictively denied another benefit (i. e., RSSP).  It would be in the interest of justice to grant the relief he requests 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.  As the applicant acknowledges he understands, it would be fair if he were to be paid RSSP based on the rank of major.  However, despite his willingness to forego credit for any retirement points he earned after what would be the effective date of his transfer to the Retired Reserve, the Board concludes he earned those points in good faith and should retain credit for those points as an exception to policy.

8.  In view of the foregoing, 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 11 May 1995 and that his application was approved.

2.  That the applicant be assigned to the Retired Reserve effective 11 May 1995 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 11 May 1995 and before the date of this Board’s decision.

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.

BOARD VOTE:  

__amc___  __alr___  __jam___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Ann M. Campbell
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000042182	
SUFFIX		
RECON		
DATE BOARDED	20001205	
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.