PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            19 April 2000
	DOCKET NUMBER:   AR1999030473

	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. Joseph A. Adriance 		Analyst	

The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Van B. Cunningham		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) payment for 1999 be paid retroactively; that his record be corrected so as not to deprive him of future VSI payments; and that, if necessary, he be transferred back to the Individual Ready Reserve (IRR) from the Retired Reserve, in order to regain his entitlement to VSI payments.   

3.  The applicant states, in effect, that in July 1998, he spoke to his career advisor, at the Army Reserve Personnel Command (ARPERSCOM), about changing his Reserve status from the Individual Ready Reserve (IRR) to the Retired Reserve.  This request would be based on his length of service of over 19 years at the time.  His advisor recommended that he request transfer to the Retired Reserve, in order to reduce the administrative requirements on him to meet retention criteria, which included promotion gates and physicals.  He was also advised at that time that this transfer to the Retired Reserve would not affect his eligibility to continue to draw his VSI payments.  However, once he took the action to transfer to the Retired Reserve he was informed by the retirement section at ARPERSCOM that he was no longer eligible to draw VSI payments because his action was voluntary.  He contends this error was the result of a misunderstanding and poor counseling on the part of his career advisor, and was not the result of a conscious decision made by him.  

4.  The applicant’s military records show that he served on active duty for 
19 years and 25 days.  He was honorably separated on 1 July 1992, in the rank of chief warrant officer/W-3 (CW3), and transferred to the USAR Control Group (Reinf), St. Louis, Missouri as a member of the IRR.

5.  The record contains a DD Form 214 (Certificate of Release or Discharge From Active Duty) issued to the applicant on his separation.  This document shows that he was honorably separated, under the provisions of chapter 3, Army Regulation 635-120, by reason of voluntary incentive program (VSI).  It also shows that he was authorized VSI payments of $16,385.40 for 38 years.  A copy of the DD Form 214 provided by the applicant contains a pen and ink initialed change to the amount of VSI.  The pen and ink changed amount is $15,534, the years authorized, 38, was not changed. 

6.  On 1 July 1992, the day of his separation from active duty, the applicant was appointed a CW3 in the USAR, and transferred to the IRR, in order to satisfy the Ready Reserve service requirements of the VSI program. 

7.  In July 1998, the applicant consulted the manager of his records at ARPERSCOM, to discuss a transfer to the Retired Reserve based on his length of service and given the administrative requirements for IRR personnel to meet retention gates, which included promotion gates and physicals.  After this conversation, in which the applicant claims he was assured that his entitlement to VSI payments would not be affected by his status change, he requested transfer to the Retired Reserve.  

8.  On 15 July 1998, Orders Number C-07-824527 was published by the ARPERSCOM, which released the applicant from the USAR Control Group (Reinf) and transferred him to the Retired Reserve, effective 30 July 1998.  

9.  In July 1999, when the applicant failed to receive his next annual VSI payment, he contacted ARPERSCOM to determine why his VSI payments had been stopped without his ever being counseled or advised.  He was informed that he was ineligible to receive further VSI payments based on his current Retired Reserve status and because his transfer to the Retired Reserve was voluntary.  The applicant was also informed that he had been previously advised of his loss of VSI entitlement, in a June 1999 letter from the Chief of the 94th Regional Support Team, based on the fact he was separated from the Ready Reserve.

10.  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.  The voluntary incentive program was designed to support the Army’s drawdown.  

11.  Headquarters, Department of the Army 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 shows that the applicant, when he discovered that his transfer to the Retired Reserve impacted his receipt of VSI payments, attempted to resolve the situation through ARPERSCOM.  In addition, it was clear that he had not been advised prior to taking action to transfer to the Retired Reserve, that this action would cancel his entitlement to VSI payments.  Further, the Board finds it is unreasonable to believe that an individual would voluntarily transfer to the Retired Reserve knowing that such action would suspend his annual VSI payments.

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

3.  The applicant’s record confirms that he served honorably on active duty for over 19 years and was entitled to the VSI payments for 38 years upon his separation from active duty in 1992.  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’s Ready Reserve status should be restored by voiding the 1998 action to transfer him to the Retired Reserve and assigning him to the Individual Ready Reserve (IRR), Control Group (Reinforcement), effective that same date, and by resuming VSI payments.  In addition, any annual VSI payments, which were lost as a result of the applicant’s transfer to the Retired Reserve, should be paid retroactively.

5.  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:

a.  declaring the 30 July 1998 transfer of the individual concerned to the Retired Reserve null and void;

b.  showing that the applicant continues to serve in the IRR, Control Group (Reinforcement) of the Ready Reserve.

c.  restoring his entitlement to annual VSI payments; and 

d.  authorizing retroactive payment of any lost VSI payments, which resulted from his transfer to the Retired Reserve.

BOARD VOTE:  

___eja___  ___vbc__  _jph____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____James P. Huber_____
		        CHAIRPERSON

INDEX

CASE ID	AR1999030473	
SUFFIX		
RECON		
DATE BOARDED	2000/04/19	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  297	128.1400	
2.		
3.		
4.		
5.		
6.