PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            25 October 2001                  
	DOCKET NUMBER:   AR2001061905

	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:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Ronald E. Blakely		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 he be reinstated in the U. S. Army Reserve (USAR) and his Voluntary Separation Incentive (VSI) payments be resumed.

3.  The applicant states that he mistakenly resigned his commission in the  USAR. He received a letter from the Army Reserve Personnel Command        (AR-PERSCOM) requiring him to take a physical exam or resign.  He did not realize that he would be resigning from the Individual Ready Reserve (IRR).  He was under the impression that the only requirements for the IRR were to keep AR-PERSCOM informed of his current address.  Since the letter did not mention the VSI or the IRR, he had no idea that he would be completely discharged and be giving up both his IRR status and his VSI entitlements.  He would not have walked away from his obligation or his VSI entitlements.  

4.  The applicant’s military records show that he was born on 14 March 1962.   He entered active duty on 12 May 1984.  He was promoted to captain on            1 May 1988.  On 1 August 1993, he was discharged under the Early Release Program – VSI after completing 9 years, 2 months, and 20 days of creditable active service.  His request for early release is not available.  His Certificate of Release or Discharge from Active Duty, DD Form 214, indicates he would receive 18 annual VSI payments of $8,877.52 each.  Effective 1 August 1993 he was appointed as a USAR captain for an indefinite term.  On an unknown date, he was promoted to major.

5.  On 2 October 2000, AR-PERSCOM notified the applicant by memorandum that their records indicated he was past due for a physical.  He was requested to sign, date, and check the appropriate block(s) on the reverse side of the memorandum.  The applicant checked the block “As a Reserve Officer in the USAR, who has completed my statutory or contractual obligation, I hereby tender my unqualified resignation and desire an honorable discharge from the USAR.”  He signed, dated, and returned the form to AR-PERSCOM.  In compliance with his request, AR-PERSCOM published orders discharging him from the USAR effective 26 October 2000.

6.  The National Defense Authorization Act for Fiscal Year 1992 established voluntary incentive programs to support the Army drawdown.  The VSI was one of the monetary benefits associated with this incentive program.  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 continued to serve in the Ready Reserve.  VSI annual payments would be discontinued if the member was separated from the Ready Reserve unless the individual became ineligible to continue to serve due to medical or age limitations in which case the soldier would be transferred to the Standby Reserve or the Retired Reserve.

7.  Army Regulation 140-10 states that soldiers not sooner removed for another reason will be removed from the Army Reserve when they each maximum age.  Removal date for field and company grade USAR offices will be the last day of the month in which they reach age 60.

CONCLUSIONS:

1.  The Board notes that the applicant checked the option box that clearly stated he tendered his resignation and desired discharge from the USAR and it is normally understood that if one is discharged from the U. S. Army Reserve one cannot remain in the Individual Ready Reserve.  However, the Board concludes that it is unreasonable to believe that the applicant would have tendered his voluntary resignation if he understood that such action would cause him to lose his annual VSI annuity payments of over $8,000 over the next 11 years.  

2.  The applicant’s record confirms that he served honorably for 9 years on active duty and was entitled to the VSI upon his separation in 1993 and appointment in the USAR.  It would be unjust to hold him 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.

3.  The applicant can continue to be eligible for the VSI payments only if his USAR discharge action is voided.  The applicant has not yet reached the maximum age requirement for mandatory transfer to the Retired Reserve nor is there any current medical evidence which would make him ineligible for continuation in the IRR.  As such, it would be appropriate to void his October 2000 discharge, to resume his VSI payments, and to retroactively pay any annual payments which were lost as a result of his discharge.  

4.  The applicant is still required to take a periodic physical.  As a member of the IRR he is subject to mobilization.  This is the reason members of the IRR must take a periodic physical, to ensure they remain medically fit for retention and therefore for mobilization.

5.  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:

     a.  declaring the applicant’s 26 October 2000 discharge from the U. S. Army Reserve null and void;

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

     c.  restoring the applicant’s entitlement to annual VSI payments; and

     d.  retroactively paying to the applicant any lost VSI payments which resulted from the discharge action.

2.  That within 30 days of the applicant’s reinstatement he take the appropriate steps to complete the required periodic physical and return the completed physical to AR-PERSCOM.  The applicant is reminded that VSI payments do not cease if a member is found to be medically unfit for retention.

BOARD VOTE:  

__rjw___  __kan___  __reb___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Raymond J. Wagner
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001061905	
SUFFIX		
RECON		
DATE BOARDED	20011025	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.		
3.		
4.		
5.		
6.