PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           29 July 2003
	DOCKET NUMBER:   AR2002080599

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas E. O'Shaughnessy, Jr.		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  The applicant requests that his discharge be withdrawn and that he be placed in a US Army Reserve (USAR) status that will permit him to retain his Voluntary Separation Incentive (VSI) status and payments.

3.  The applicant states, in effect, that he left active duty in 1992 under the voluntary incentive program - VSI.  In 2001, he received notice from the Army Reserve Personnel Command (AR-PERSCOM) that he had been passed over for promotion to lieutenant colonel.  He states that he filled out some papers and sent them to AR-PERSCOM, but never received any response.  On 4 September 2001, he was discharged from the USAR and his VSI payments were stopped.  He adds that he would never have knowingly done anything to interfere with his VSI payments; that he depends upon and needs those payments; and that he would do whatever is necessary to regain them.  He submits:  a copy of his DD Form 214 (Report of Separation from Active Duty) for the periods ending 2 December 1973 and 1 September 1992; a copy of DD Form 215 (Correction to DD Form 214); and a copy of a Defense Finance and Accounting Service (DFAS) VSI Earning Statement.

4.  The applicant’s military records show that he was a career soldier who was separated as a captain on 1 September 1992 under the voluntary incentive program and transferred to the USAR Control Group (Reinforcement).  As a condition of separation, he was to receive annual VSI payments of $15,916.57 until 1 September 2024.  He began receiving his VSI payments and continued to receive them until his USAR affiliation was terminated on 4 September 2001 when he was discharged after failing to respond to a notification and option letter after being twice non-selected for promotion.

5.  In the processing of this case, an advisory opinion was obtained from the Transition and Separation Branch, Army Reserve Personnel Command.  The opinion states that the discharge proceedings were proper and in accordance with Army Regulations; however, authority should be given to void the discharge and allow the applicant to transfer to the Retired Reserve so he may continue to receive his VSI payments.  The applicant was forwarded a copy of this advisory opinion on 20 February 2003, but there is no record of his response.

6.  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-selection for promotion, medical disability, age, or other involuntary reasons.

7.  Army policy and the Department of Defense Military Pay and Allowances Entitlements Manual (DODPM), based on Public Law 102-190, dated 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 draw down.  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.  

8.  Army Regulation 135-175, Section II, Reserve Component (Discharge Criteria), paragraph 4-4, provides that officers in the Army Reserve will be removed from an active status, with or without their consent, regardless of the length of commissioned service when not-selected for promotion after second consideration by the Department of the Army Reserve Components selection board for the grades of first lieutenant, captain or major.  Removal will be by discharge, transfer to the Retired Reserve (if eligible and requested by the member) or, if eligible, transfer to Control Group (Inactive).

9.  Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.  Paragraph 7-4 requires removal of officers who are twice not selected for promotion to chief warrant officer three, chief warrant officer four, captain, major,
or lieutenant colonel.  

10.  Title 10, USC, section 14513, states that a Reserve officer of the Army, who is in an active status and whose removal from an active status or from a Reserve active status list is required by section 14506 of this title shall:  1) be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officer’s armed force; 2) be transferred to the Retired Reserve, if the officer is qualified and applies for such transfer; or 3) if the officer is not transferred to an inactive status or the Retired Reserve, be discharged from the officer’s Reserve appointment.  

11.  Public Law 107-107, enacted 28 December 2001, modified Title 10, U.S. Code section 14513 and now allows the transfer of a soldier to the Retired Reserve without submitting a request to AR-PERSCOM to qualify.  However, soldiers still may request not to be transferred to the Retired Reserve and be subsequently discharged.  
CONCLUSIONS:

1.  The evidence of record shows that the applicant was honorably discharged on 1 September 1992 under the Voluntary Incentive Program – VSI.  He was entitled to a VSI payment in the amount of $15,916.24 annually for 32 years, until 1 September 2024, provided he continued to serve in a Reserve Component during the entire period that he received VSI entitlements unless separated for medical, age, or service limitations.

2.  The applicant contends that when he was notified of his second non-selection for promotion to lieutenant colonel, he sent in the appropriate documents to AR-PERSCOM.  Those documents were never received; however, the Board concludes that it is reasonable to believe that the applicant would have requested to be transferred to the Retired Reserve, with the continuation of his  remaining VSI payments.

3.  Although the applicant was properly discharged in accordance with Army regulations then in effect, the Board notes that shortly after he was separated because AR-PERSCOM did not receive his election of options document, a change in Public Law permitted AR-PERSCOM to automatically transfer a soldier to the Retired Reserve without a request from the soldier.  The Board feels it would be in the Government’s interest to transfer him to the Retired Reserve where he could be a mobilization asset for a reasonable length of time to come.

4.  Therefore, it would now be appropriate, as a matter of fairness and equity, to revoke the applicant's discharge of 4 September 2001 and allow him to be transferred to the Retired Reserve, effective the same date, and to reinstate his VSI payments, and that any annual payments which were lost as a result of his discharge be paid retroactively.

5.  In view of the foregoing, findings and conclusions, correcting the applicant’s records as recommended below would correct an error or rectify an injustice.

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected:

	a.  by revoking AR-PERSCOM orders D-09-142285, dated 5 September 2001, which discharged him effective 4 September 2001;

	b.  by issuing orders showing that he was transferred to the Retired Reserve effective 4 September 2001;
 
c.	by restoring his entitlement to annual VSI payments; and 
d.	by retroactively paying to him any lost VSI payments which resulted
from the separation action.

BOARD VOTE:  

__mkp___  __wtm___  __teo___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Margaret K. Patterson
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002080599	
SUFFIX		
RECON		
DATE BOARDED	20030729	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.0800	
2.		
3.		
4.		
5.		
6.