PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  11 February 2003
	DOCKET NUMBER:  AR2002075456

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Antonio Uribe		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 he be reenlisted in the U. S. Army Reserve (USAR) and that he be provided his Voluntary Separation Incentive (VSI) payments.

3.  The applicant states that he was not adequately briefed prior to separation from active duty (AD) in July 1992 on his responsibilities under the Voluntary Separation Incentive (VSI) Program.  He was notified of his discharge in June 2000 and later contacted the retention manager at the Army Reserve Personnel Command (AR-PERSCOM).  He was provided with instructions that he needed to determine if he met the eligibility criteria for reenlistment.  It appeared that he met the criteria for reenlistment; however, he needed a physical.  He was informed that his request for a physical had to be coordinated with the Military Entrance Processing Station (MEPS) and approved by the commander.  He contacted MEPS on several occasions and was informed that his request had not been reviewed.  He was never informed that there was a time limit to obtain a physical for his reenlistment.  He was later scheduled for a physical on 5 May 2001 that was completed in August 2001.  The results were forwarded to AR-PERSCOM.  It was later discovered that his eligibility date had expired on 17 July 2001 and he was no longer eligible for reenlistment.  Had he been informed by AR-PERSCOM of the time constraints of his eligibility, he would not have waited on the recruiters to make a decision of whether or not they were going to assist him in this matter. He also states that his middle name is incorrect on his separation orders, dated 21 March 2000.  In support of his application, he submits copies of his:  DD Form 4 (Enlistment/Reenlistment Contract), dated 18 July 1992; separation orders; Birth Certificate; and a copy of his Social Security Card.

4.  The applicant’s military records show he enlisted on 11 June 1975.  He continued to serve until he was honorably discharged 17 July 1992, under the provision of Army Regulation 635-200, paragraph 16-8, Enlisted Voluntary Transition Program.  He had a total of 17 years, 1 month, and 7 days of creditable service.  Item 18 (Remarks) of his DD Form 214 states he would be paid VSI in the amount of $8,979.00 for a period of 34 years.  He was transferred to the USAR Control Group (Reinforcement) Individual Ready Reserve (IRR).

5.  He enlisted in the Army Reserve on 18 July 1992, for a period of 3 years with an established expiration of term of service (ETS) of 17 July 1995.

6.  The applicant's records contain a copy of AR-PERSCOM Orders D-03-017913 dated 21 March 2000, which show that he was honorably discharged from the US Army Control Group (Reinforcement) effective 21 March 2000.  
This order also shows that the first letter of his middle name is shown as “K” instead of “L” and is incorrect.

7.  The applicant provided copies of his Birth Certificate and Social Security Card that show his correct middle name.

8.  Information provided by the Defense Finance and Accounting Service (DFAS) revealed that his last VSI payment was received on 17 July 1999, in the amount of $8,443.38.

9.  In the processing of this case an advisory opinion was provided by the 
AR-PERSCOM.  AR-PERSCOM recommended that the applicant’s request be approved.  The applicant is a VSI recipient and if not allowed to reenlist he will lose his VSI Payments.  His last USAR enlistment contract expired over 7 years ago and the applicant was discharged effective 21 March 2000.  In accordance with Army Regulation 140-11, table 2-4, the maximum number of years that a soldier can reenlist for is 6 years.  His last contract expired on 17 July 1995 and they are unable to reenlist him in accordance with Army Regulation 140-11, paragraph 5-15.

10.  The applicant was provided a copy of the favorable opinion for possible comment prior to consideration of his case.  The applicant responded within the timeframe allotted and concurred on 23 September 2002.

11.  The National Defense Authorization Act of Fiscal Year 1992, to assist in maximizing voluntary separation during the drawdown period of military forces, established a separation incentive called the VSI.  The VSI pays an annual annuity payment equal to 2.5 percent of the soldier’s annual basic pay at separation from the active Army multiplied by the soldier's number of years of service and paid for twice the number of years the soldier had served at the time of separation.  Soldiers approved for VSI must be appointed, enlisted, or transferred to the Ready Reserve for the entire period that they receive VSI annual payments.  A VSI recipient must remain eligible for retention or reenlistment in the Ready Reserve by maintaining Army weight standards, completing a military physical examination every five years, keeping their residence address and phone number updated at the Army Reserve Personnel Command (AR-PERSCOM), and responding to all official written and telephonic correspondence from AR-PERSCOM.  Enlisted VSI recipients must reenlist at 
the end of each term of service.  There is no evidence of record that the applicant was notified 90 days prior to his expiration of term of service (ETS) of the requirement to reenlist.

12.  If the VSI recipient fails to remain eligible or reenlist, the soldier will be separated from the Reserve and the VSI annual payments will be discontinued.  If a VSI recipient becomes ineligible to continue to serve in the Ready Reserve, through no fault of his or her own, the soldier will be transferred to the Retired 

Reserve and continue to receive annual VSI payments for the remaining period authorized for VSI.  At age 60, the VSI recipients will automatically be transferred to the Retired Reserve and continue to receive annual VSI payments for the remaining period authorized for VSI.

13.  Army Regulation 140-111 (U. S. Army Reserve Reenlistment Program), paragraph 5-15, authorizes antedating reenlistment agreements to avoid a break in service when reenlistment has been delayed through administrative error or through no fault of the soldier.  The soldier must meet Army weight standards and have a current (within five years) qualifying military physical to be reenlisted.

14.  Army Regulation 140-111 (U. S. Army Reserve Reenlistment Program), Table 2-1, states that soldiers must meet Army weight standards and have a current (within five years) qualifying military physical to be reenlisted.

15.  Table 2-4 states that applicants between the age of 18 through 54 and currently serving under an enlistment, reenlistment, or extension, and have no remaining statutory service obligation, may enlist within 3 months of their ETS for 3, 4, 5, or 6 years.  

CONCLUSIONS:

1.  The applicant was separated from active duty on 17 July 1992, under the VSI program and was to receive $8,979.00 a year for 34 years.  A condition of receiving the VSI payments was to remain in the Ready Reserve.

2.  The applicant reenlisted on 18 July 1992 for a period of 3 years with an established ETS of 17 July 1995.  However, he continued to serve past his ETS and was honorably discharged on 21 March 2000.

3.  The applicant contacted AR-PERSCOM and was provided with instructions to determine if he was eligible for reenlistment.  He met the criteria; however, he needed an updated physical.  He attempted to obtain a physical and was never informed on the time limit to obtain a physical for his reenlistment. 

4.  The applicant was later scheduled and completed his physical in August 2001. The results were received by AR-PERSCOM who discovered that the applicant’s eligibility date had expired on 17 July 2001 and was no longer eligible for reenlistment.  

5.  The applicant is authorized to receive VSI payments each year until 17 July  2026.  He should have been provided reenlistment documents to reenlist in the Reserve 3 months prior to his established ETS of 17 July 1995, instead of being discharged on 21 March 2000.  He should now be reenlisted, antedated effective 18 July 1995, for a period of 6 years, so that there is no break in service.  He should be given waivers for weight standards and current military physical as required, as an exception, in order to restore his VSI status and correct the error of him being discharged.  His term of enlistment should expire on 17 July 2001.   
He should be entered into the process to qualify for reenlistment on 18 July 2001. He should be provided his VSI payments for 2000 and 2001 and reinstated for annual VSI payments if he remains qualified.

6.  The Board notes that the applicant’s middle name is misspelled on his separation orders dated 21 March 2000.  Since this order will be revoked no correction is necessary.  

7.  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 for the individual concerned be corrected by:

	a.  reenlisting him for a six year term of service in the Reserve, antedated effective 18 July 1995, with waivers for weight standards and current military physical as required;

	b.  revoking his 21 March 2000 order for discharge from the Reserve;

	c.  providing him VSI payments for 2000 and 2001; 

d.  reinstating his VSI payments if he remains qualified after 18 July 2001;
and

	e.  ensuring that his middle name is correctly spelled in the discharge revocation.

BOARD VOTE:  

__sc___  ___au___  __rs____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Samuel A. Crumpler__
		        CHAIRPERSON

INDEX

CASE ID	AR2002075456	
SUFFIX		
RECON		
DATE BOARDED	20030211	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	20000321	
DISCHARGE AUTHORITY	AR 135-178	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	227	
2.		
3.		
4.		
5.		
6.