PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  6 June 2002
	DOCKET NUMBER:  AR2001062154

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. Thomas E. O'Shaughnessy		Member	
	Mr. John T. Meixell		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 that his voluntary resignation from the IRR (Individual Ready Reserve) be revoked and that he be reinstated in order to continue to draw his annual VSI (Voluntary Separation Incentive) payments.

3.  The applicant states that he was honorably discharged on 31 July 1993, under VSI and was transferred to the US Army Reserve (USAR).  He began drilling with a Reserve unit in Bangor, Maine and remained in the unit until the Spring of 2000.  In the Spring of 2000, he decided to end his affiliation with the unit due to conflicts with his civilian employment.  He was unable to maintain the level of participation required and complete his duties with the City of Rochester, New Hampshire.  He also states that he stopped drilling with his unit until he received a form to complete which asked if he desired to enter the IRR or resign his commission.  At that time he elected to resign.  He received his normal VSI payment in the Summer of 2000 and on 7 August 2001, he was notified that he would no longer receive VSI pay due to his resignation.  He was further notified that his contract required him to remain in the IRR, as a minimum, to maintain payments under VSI.  He states that it was not his intent to give up his VSI and had he realized, at that time, that he was required to maintain his status in the IRR, he would have made the proper election and remained in the IRR.  This request for reinstatement would have been made immediately in 2000 had he not received his VSI payment in July/August 2000.  In support of his application, he submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

4.  The applicant’s military records show he was commissioned as a second lieutenant on 25 May 1983, in the Armor branch.

5.  He was promoted to the rank of captain/0-3 on 1 May 1987.

6.  On 31 July 1993, the applicant was released from active duty under the provisions of Army Regulation 635-120, chapter 3, Early Release Program-VSI.  He had a total of 10 years, 2 months, and 6 days of creditable service.  He was transferred to a Troop Program Unit (TPU).  Item 18 (Remarks) of his DD Form 214 states that he would be paid VSI in the amount of $9,512.34 for 20 years.

7.  He was promoted to the rank of major/0-4 on 1 April 1996.

8.  On 31 May 2000, he was voluntarily released from his TPU and was assigned to the USAR Control Group IRR Reinforcement (REINF).

9.  Information provided by the Army Reserve Personnel Command (AR-PERSCOM) shows that the applicant was notified on 3 July 2000, that his physical examination was outdated.  The applicant was required to undergo a military physical examination at least once every five years.  Records at 
AR-PERSCOM indicated that the applicant’s physical was outdated.  On
28 July 2000, the applicant tendered his voluntary resignation from the USAR,
rather than complete a physical examination, and desired an honorable discharge.  

10.  AR-PERSCOM provided a copy of an electronic printout from the Reserve Personnel Data Base which shows that the applicant was discharged on 30 August 2000. 

11.  Army Regulation 635-120 prescribes policy and procedures governing transfer and discharge of Army officer personnel from the Active Army.  Chapter 3 provided for the voluntary release of officers from active duty under the Early Release Program-VSI.

12.  Department of Defense (DOD) Financial Management Regulation, Volume 7A, Chapter 35, paragraph 350801, subparagraph F, states:  “The member must accept voluntary appointment…to the Ready Reserve of a Reserve Component and must continue to serve in a Reserve Component during the entire period of eligibility for VSI.  If the member does not continue to serve in the Ready Reserve, the VSI installments terminate on the date of separation from the Reserve Component or transfer to the Retired Reserve.”  Exceptions are provided for 2-time non-select for promotion, medical disability, age or other
involuntary reasons.

13.  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 VSI was one of the monetary benefits associated with this incentive program.  The voluntary incentive program was designed to support the Army's drawdown.  HQDA message 281802Z 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.  VSI annual payments will 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.  The evidence of record shows that the applicant was notified by AR-PERSCOM that his physical examination was outdated and that he was required to undergo a physical examination at least once every five years.  The applicant tendered his voluntary resignation, rather than complete the physical examination required.

2.  The Board contends that it is unreasonable to believe that an individual would tender his voluntary resignation knowing that such an action would terminate his annual VSI annuity payments.

3.  The evidence also shows that the only way the individual would continue to be eligible for the VSI payments were if his USAR discharge action was voided.  The applicant has not yet reached the maximum age requirement for mandatory transfer to the Retired Reserve nor is there any medical evidence, which would make him ineligible for continuation in the Individual Ready Reserve.  As such the only appropriate action would be reinstatement.

4.  The applicant’s record confirms that he served honorably for 10 years on active duty and was entitled to the VSI upon his separation on 31 July 1993 with
appointment in the USAR.  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.

5.  The Board contends that in view of the circumstances, and in the interest of justice, the applicant’s status in the Individual Ready Reserve should be restored by voiding his honorable discharge of 30 August 2000, that his VSI payments be resumed and that any annual payments which were lost as a result of his separation be paid 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 for the individual concerned be corrected in the interest of justice:

a.  by declaring the applicant’s 30 August 2000, honorable discharge from the Army Reserve null and void;

b.  by reinstating the applicant in the Individual Ready Reserve in the grade of major without any loss of creditable service;

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

d.  by retroactive payment of any lost VSI payments, which resulted from the separation action.

BOARD VOTE:  

__sk____  ___to____  ___jm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Stanley Kelley___
		        CHAIRPERSON

INDEX

CASE ID	AR2001062154	
SUFFIX		
RECON		
DATE BOARDED	20020606	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	20000830	
DISCHARGE AUTHORITY	AR  140-10	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  1023		
2.		
3.		
4.		
5.		
6.