PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            2 April 2002
	DOCKET NUMBER:   AR2001064689

	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:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Regan K. Smith		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 her discharge from the United States Army Reserve (USAR) be voided, that she be transferred to the Retired Reserve and that her entitlement to Voluntary Separation Incentive (VSI) payments be reinstated.

3.  The applicant states, in effect, that she was discharged from the USAR without her knowledge, due to being twice nonselected for promotion to the rank of lieutenant colonel (LTC).  She goes on to state that she is a VSI annuitant and upon her relocation in August 1998, she provided a new address to the Defense Finance and Accounting Service (DFAS).  She goes on to state that she did not receive the notice of her nonselection and was not expecting such a notice.  However, because she did not respond to the notice and make an election to be transferred to the Retired Reserve, she was discharged.  She also has not received a copy of her discharge order.  Inasmuch as she must remain affiliated with the Reserve Components in order to receive her VSI annuity, she desires to be transferred to the Retired Reserve.

4.  The applicant’s military records show that on 16 September 1992, while serving in the Regular Army in the rank of major, she was honorably discharged under the provisions of Army Regulation 635-100 and the Voluntary Separation Incentives Program (VSIP).  She had served 11 years, 9 months and 16 days of total active service and was authorized VSI annuity payments of $12,826.77 for 23 years.  She accepted a USAR commission and was transferred to the USAR Control Group (Reinforcement).

5.  In the processing of this case a staff member of the Board contacted officials at the Army Reserve Personnel Command (ARPERSCOM) to ascertain the applicant’s status.  Officials at the ARPERSCOM indicated that the applicant was twice nonselected for promotion to LTC and a notice of her nonselection as well as an option election statement was dispatched to her last known address.  It was returned as undeliverable and she was discharged on 21 May 1999.

6.  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.  

7.  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.  

8.  Army Regulation 135-175 provides the policies governing the separation of Reserve officers.  It provides, in pertinent part, that a Reserve officer who is twice nonselected for promotion to the rank of LTC by a Department of the Army Reserve Components Selection Board will be discharged or transferred to the Retired Reserve, if requested by the individual. 

CONCLUSIONS:

1.  The applicant’s discharge from the USAR on 21 May 1999 was accomplished in accordance with the applicable regulations, when her option election form was returned as undeliverable.  

2.  While the Board recognizes that it is and was the applicant’s responsibility to ensure that ARPERSCOM officials were aware of her current address at all times, the Board finds that under the circumstances, additional efforts should have been made to advise the applicant on the effects that a discharge would have on her VSI entitlements.

3.  The Board also finds it unreasonable to believe that the applicant would have elected to be discharged, since such an action would terminate her entitlements to VSI payments.  Accordingly, it is reasonable to presume that she would have elected transfer to the Retired Reserve.

4.  The Board concludes, in view of the circumstances, and in the interest of justice, that her 21 May 1999 discharge from the USAR should be voided, that she be transferred to the Retired Reserve, and that her VSI payments be resumed.

5.  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 her discharge from the USAR, 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 be corrected by voiding the 21 May 1999 discharge from the USAR pertaining to the individual concerned, that she be transferred to the Retired Reserve with entitlement to annual VSI payments and that she be paid all VSI payments that she missed as a result of her discharge.

BOARD VOTE:  

__wtm___  ___rks __  ___clg __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Walter T. Morrison____
		        CHAIRPERSON

INDEX

CASE ID	AR2001064689	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/04/02	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1999/05/21	
DISCHARGE AUTHORITY	AR135-155	
DISCHARGE REASON	PASSOVER	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  335	135.0300/CHG STATUS	
2.  291	128.0800/SEV PAY (VSI) 	
3.		
4.		
5.		
6.