MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           11 July 2002                   
	DOCKET NUMBER:   AR2001063740

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		                         Director	
	Mr. Edmund P. Mercanti		                         Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Harry B. Oberg		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his discharge be corrected to transfer to the Retired Reserve.

APPLICANT STATES:  In effect, that he had divorced his wife and she failed to forward his mail to him.  Although he filed a change of address, he is confident that some of his mail was never forwarded to him.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was honorably separated from active duty in the rank of captain on 30 September 1992, with Voluntary Separation Incentive (VSI), with 12 years, 2 months and 10 days of active duty.  His separation was at his own request.  In conjunction with his separation he completed a request for VSI, wherein he stated “I agree to serve in the Ready Reserve for the entire period VSI will be received.”

There is no record of the applicant joining a Reserve unit or otherwise participating in the Army Reserve.  However, he was promoted to major, Army Reserve, on 9 April 1993.

On 9 May 2000 the applicant was notified that he was considered for promotion to lieutenant colonel but not selected, and he would be considered for promotion once again the following year.

There is no record of the applicant’s second failure to be selected for promotion, nor does his record contain his discharge order.

Army Regulation 135-133, paragraph 4-3b, states “Each soldier must furnish a permanent home address (home of record).  When away from that permanent address for more than a month, the soldier will provide a temporary 
[address] . . .”

Army Regulation 135-175, paragraph 4-4a(5), states that a major will be discharged for failure to be selected for promotion after a second consideration by a selection board.

Army Regulation 140-10, paragraph 6-1a(5), states that a member of the Army Reserve is eligible for transfer to the Retired Reserve if he or she has reached the age of 37 and has completed a minimum of 8 years of qualifying Federal service.

The National Defense Authorization Act for FY92 established two monetary incentive programs to assist in maximizing voluntary separations during the draw down period of military forces.  The two monetary incentives included the SSB, a lump sum payment equal to 15 percent of the soldier’s annual basic pay multiplied by his years of active service, and the VSI, an annual annuity payment equal to 2.5 percent of the soldier’s annual basic pay multiplied by his years of service and paid for twice the number of years served.  The FY92 program provided that soldiers electing the SSB would not forfeit any SSB or compensation received if they subsequently served on active duty, or on reserve duty in a pay status.  Additionally they were granted several non-monetary transition benefits including commissary and exchange privileges, employment preference in non-appropriated fund positions, and transitional health care (CHAMPUS or medical treatment facility).  Soldiers electing to receive the VSI were denied those transitional benefits during the FY92 program.  However, when the FY93 program was announced as part of the Defense Authorization Act of FY93 those disparities were equalized.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant acknowledged by his signature that he understood that he had to remain a member of the Ready Reserve to continue to receive VSI payments.

2.  Army Regulation 135-155 requires all members of the Army Reserve who move from their home of record to notify their command of their new temporary or permanent address.  The applicant failed to comply with this regulatory requirement.

3.  While the applicant was eligible for transfer to the Retired Reserve, he was required to be discharged for failure to be promoted to lieutenant colonel if he did not request an alternate form of removal from an active status.  He did not make any such request.  As such, his discharge was appropriate.

4.  While it is regrettable that the applicant lost his VSI payments, his loss was due to his failure to maintain even minimal contact with the appropriate commands in compliance with lawful regulations.  His failure to maintain contact with the appropriate commands deprived the Government of the ability to call him to active duty.  Under the equitable doctrine of laches, he may not now seek relief from his failure to attend to his own interest or to fulfill his commitment to the Government.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jtm____  ___tsk __  ___hbo__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001060421	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020711	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.