ABCMR Proceedings (cont)                                                        AR2002079279

PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  22 May 2003
	DOCKET NUMBER:  AR2002079279

	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. Raymond V. O’Connor, Jr. | | Chairperson
| Ms. Gail J. Wire | | Member
| Mr. Stanley Kelley | | 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 Individual Ready Reserve (IRR) effective 10 January 2002 in order to continue to draw his annual Voluntary Separation Incentive (VSI) payments.

3.  The applicant states that at the time of his discharge, he was under the impression that he would be reinstated in the IRR.  He was receiving VSI and was entitled to receive payments until the year 2027.  The Army Reserve Personnel Command (AR-PERSCOM) informed him that he needed an updated physical and an Army Physical Fitness Test (APFT).  He attempted to obtain both; however, no one would administer him an APFT or would give him an updated physical without authorization from AR-PERSCOM.  He requested that he be reinstated in the IRR or ordered to active duty for 2 years in order to qualify for Regular Army retirement.  He also states that he received a letter from AR-PERSCOM and was under the impression that he was still in the IRR.  In support of his application, he submits copies of his Defense Finance and Accounting (DFAS)-CL 1900 (VSI Earning Statement) and a memorandum from the Retention and Transition Office, AR-PERSCOM, dated 21 May 2002.

4.  The applicant’s military records show that he enlisted on 18 September 1974. 

5.  He continued to serve until he was honorably discharged in the pay grade of E-6 on 14 July 1992, under the provision of Army Regulation 635-200, paragraph 16-8, Voluntary Early Transition Program, VSI.  He had a total of 17 years, 9 months, and 27 days of creditable service.  Item 18 (Remarks) of his DD Form 214 states he would be paid VSI in the amount of $9,330.99 for a period of 30 years.  He was transferred to the USAR Control Group (Reinforcement).

6.  He enlisted in the Army Reserve on 15 July 1992, for a period of 3 years with an established expiration of term of service (ETS) of 14 July 1995.

7.  He reenlisted in the Army Reserve on 13 December 1995, for a period of 6 years with an established ETS of 12 December 2001.

8.  The applicant's records contain a copy of an over 40 year physical dated 7 April 1997 which shows that he was qualified for retention in his current duty assignment.  On an unknown date he was transferred from the IRR to a USAR unit.

9.  The applicant provided a copy of DFAS-CL 1900 Form (VSI Earning Statement), dated 14 July 2001, which revealed that he received payment in the amount of $9,330.99 for the period 15 July 2000 through 14 July 2001. 

10.  The applicant's records contain a copy of Headquarters, 89^th Regional Support Command Orders 02-010-007, dated 10 January 2002, which show that he was honorably discharged from the USAR, due to his expiration of enlistment with an effective date of 10 January 2002.  Orders also indicated that he was held beyond his normal ETS date through no fault of his own. 

11.  The applicant provided a copy of a letter from an office of the Army Recruiting Command, Retention and Transition Office, dated 21 May 2002 with a suspense in 10 days.  The memorandum informed the applicant that he needed to update his records and review his options in the IRR. 

12.  A copy of the applicant’s Chronological Statement of Retirement Points was provided by AR-PERSCOM which shows that he had completed 21 years of qualifying service for retirement purposes at the end of his retirement year ending (RYE) of 31 August 2001.  There is no evidence of record that the applicant was provided the opportunity to request transfer to the Retired Reserve.

13.  Information provided by AR-PERSCOM revealed that the applicant failed the APFT with his unit and had a suspension of personnel action placed on his record.  Based on this information, he was ineligible to reenlist. 

14.  Army Regulation 135-178 establishes the policies, standards, and procedures governing the administrative separation of enlisted soldiers from the Reserve Components.  Paragraph 1-3 states, in pertinent part, that orders discharging a soldier would not be revoked or the effective date changed after the effective date of discharge unless there was evidence of manifest error or fraud.  After the effective date of discharge, orders can be amended by the separation authority only to correct manifest errors such as the wrong character of service or to correct administrative errors such as rank, social security number, or misspelled name.

15.  Paragraph 11-1 of the same regulation pertains to completion of terms of enlistment or period of statutory obligated service.  The period of military service for all enlisted soldiers of the Army will be accordance with applicable laws.  On expiration of term of enlistment, reenlistment, or period of statutorily obligated service, the soldier will be discharged by the separation authority.  Soldiers will not be held in service beyond their normal ETS unless their ETS is extended by law.

16.  Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 6 pertains to transfer to the Retired Reserve.  It states that assignment to the Retired Reserve is authorized after completion of 20 years active or inactive service in the Armed Forces. 

17.  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.

18.  Army Regulation 140-111 (U. S. Army Reserve Reenlistment Program), Table 2-1, states that soldiers must meet Army weight standards, must complete and pass the most recent APFT within 18 months, and have a current (within five years) qualifying military physical to be reenlisted.  Table 4-1 states that a suspension of personnel action will be placed on the applicant's record for failure of APFT.  

19.  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.  

20.  Paragraph 5-15, of the same regulation, 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, pass the APFT, and have a current (within five years) qualifying military physical to be reenlisted.

21.  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.

22.  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.

23.  The Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and,            (3) served the last 8-years of his or her qualifying service as a Reserve Component (RC) soldier.  The requirement to serve the last 8-years in a RC
has since been amended to the last 6-years.

24.  Sections 12731 through 12739 of Title 10, United States (US) Code, authorize retired pay for Reserve Component military service.  Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve soldier earned 50 retirement points or more. 

25.  The term “good years” is an unofficial term used to mean years in which 
50 or more retirement points are earned during each year, and which count as qualifying years of service for retirement benefits at age 60.

CONCLUSIONS

1.  The evidence of record shows that the applicant was honorably separated from active duty on 14 July 1992, under the Voluntary Early Release Program – VSI.  He was entitled to VSI in the amount of $9,330.99 for 30 years provided that he continued to serve in a Reserve Component during the entire period that he receives VSI entitlements unless separated for medical, age, or service limitations. 

2.  The evidence of record shows that the applicant's last physical was dated 7 April 1997 and he received his last VSI payment on 14 July 2001.  He was honorably discharged on 10 January 2002 due to his ETS on a date beyond his normal ETS due to no fault of his own.

3.  The evidence revealed that he had failed his APFT and that a suspension of personnel action was placed on his records, which made him ineligible for reenlistment.  
4.  The Board notes that it is the applicant's responsibility to pass the most recent APFT within 18 months of reenlistment, maintain the Army weight standards, and have a current qualifying military physical within 5 years in accordance with regulation in order to continue to receive his VSI.   

5.  The evidence of record shows that he had completed 21 years of qualifying service for retirement purposes and was qualified for transfer to the Retired Reserve.  However, he was discharged due to his expiration of enlistment and was held beyond his normal ETS.  It appears that, had the applicant been given the opportunity to transfer to the Retired Reserve he would have elected to do so. 

6.  Inasmuch as the applicant meets eligibility requirements for assignment to the Retired Reserve, it would be equitable and just to correct his military records by revoking his discharge of 10 January 2002, and assigning him to the Retired Reserve effective the same date.

7.  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 for the individual concerned be corrected:

a.  by revoking the 10 January 2002 discharge from the USAR; and

b.  by showing that he was transferred to the Retired Reserve effective
10 January 2002.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__ro___  __gw___  ___sk___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr.
		        CHAIRPERSON

INDEX

CASE ID | AR2002079279
SUFFIX |
RECON |
DATE BOARDED | 20030522
TYPE OF DISCHARGE | HD
DATE OF DISCHARGE | 20020110
DISCHARGE AUTHORITY | AR 135-178
DISCHARGE REASON |
BOARD DECISION | PARTIAL GRANT
REVIEW AUTHORITY |
ISSUES         1. | 304
2. |
3. |
4. |
5. |
6. |