PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            15 January 2002
	DOCKET NUMBER:   AR2001060662

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Donald P. Hupman, Jr.		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 14 January 2000 discharge from the United States Army Reserve (USAR) be voided, that his payments under the Voluntary Separation Incentive Program (VSIP) be continued and that he be paid all back payments that he should have received had he not been involuntarily discharged. 

3.  The applicant states, in effect, that he was discharged from the USAR without his knowledge or request and his Voluntary Separation Incentive (VSI) payments were stopped because he was no longer affiliated with the USAR.  He goes on to state that he has made numerous inquiries trying to resolve the issue to no avail. 

4.  The applicant’s military records show that on 1 February 1994, the Total Army Personnel Command (PERSCOM) approved the applicant’s request for separation under the Fiscal Year 1994 Army Officer VSIP.  The approval provided that the applicant was entitled to VSI payments and that he also incurred an additional service obligation to remain in the Individual Ready Reserve as long as he continued to receive VSI payments.

5.  He was honorably released from active duty in the rank of captain on 1 August 1994 under the Early Release Program – VSI.  He had served 9 years of active service and was authorized VSI payments of $8,315.49 for a period of 18 years.  He was transferred to the USAR Control Group (Reinforcement) and remained assigned to that control group until he was honorably discharged on 14 January 2000.

6.  In the processing of this case a staff advisory opinion was obtained from the Army Reserve Personnel Command (ARPERSCOM).  It opined that the applicant submitted a request for an unqualified resignation, which was accomplished on 21 January 2000, with an effective date of 14 January 2000.  However, officials opined that due to the time that elapsed since his discharge, back-up copies were no longer available.  The advisory opinion was provided to the applicant who responded to the effect that he has neither submitted nor discussed resignation with anyone and that he had made numerous phone calls trying to resolve the error.

7.  The applicant’s records also contain an automated listing of contacts and actions pertaining to the applicant.  It shows that on 27 April 1999 the applicant contacted officials at the ARPERSCOM and requested that an Active Guard/Reserve (AGR) packet be sent to him.  On 21 January 2000, he was discharged and the keyword it was listed under indicates “IRR REALIGN.”  On 17 April 2001 he contacted ARPERSCOM officials to inquire as to the status of his VSI check.  He was informed at that time that he had resigned and that he would have to apply to the Board.  He was provided a DD Form 149.  The applicant called back on 30 May 2001 stating that he had not received the DD Form 149.

8.  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 voluntarily separated members.  The VSI was one of the monetary benefits associated with this incentive program.  

9.  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.  Although officials at the ARPERSCOM indicate that the applicant submitted a resignation, the applicant denies having done so and the ARPERSCOM has been unable to provide any evidence to support the discharge action.

2.  Notwithstanding the ARPERSCOM contention that the applicant resigned, there is no evidence to suggest that the applicant was advised that he would lose VSI payments in conjunction with his being discharged from the USAR.  It also appears that prior to being discharged, the applicant inquired as to the procedures for requesting an AGR tour and as soon as he discovered that his VSI payments had stopped, he attempted to resolve the situation and expressed his willingness to continue to remain affiliated with the USAR. 

3.  His record confirms that he served honorably on active duty for 9 years and that he was entitled to the VSI payments for 18 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 USAR, knowing that such an action would suspend his annual VSI payments.

4.  In the opinion of the Board, it would be unjust to hold the applicant to a decision he may have 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 concludes, in view of the circumstances, and in the interest of justice, that the 14 January 2000 discharge of the applicant should be voided, that he be restored to the USAR status he held prior to his discharge, and that his VSI payments be resumed. 

6.  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 USAR, retroactively.

7.  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 voiding the 14 January 2000 discharge from the USAR pertaining to the individual concerned, that he be restored to his former USAR status with entitlement to annual VSI payments and that he be paid all VSI payments that he missed as a result of his discharge.

BOARD VOTE:  

__inw ___  __hof ___  __dh____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Irene N. Wheelwright__
		        CHAIRPERSON

INDEX

CASE ID	AR2001060662	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/01/15	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	2000/01/14	
DISCHARGE AUTHORITY	AR135-175	
DISCHARGE REASON	RESIGNATION	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  733	144.8001/A80.01	
2.  291	128.0800/VSI	
3.		
4.		
5.		
6.