MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 May 2002
         DOCKET NUMBER: AR2001066203

         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Donald P. Hupman		Member
Ms. Kathleen A. Newman		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)

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APPLICANT REQUESTS: That his Reserve enlistment contract be voided.

APPLICANT STATES: That his 6-year Reserve enlistment contract was truly unjust and that he was under the impression that he needed to reenlist in order to continue receiving his Voluntary Separation Incentive (VSI) payments. He was misled by the recruiter who explained to him that if he reenlisted in the Active Reserve and failed to show for assignment, he would be returned to an Individual Ready Reserve (IRR) status. He also states that no one would enlist him for the inactive Reserve because he was unable to obtain points for doing so. His lack of knowledge was partially responsible for the confusion; however, he was confident that his chain of command would provide him with accurate advice.
On 6 April 2000, he informed Defense Finance and Accounting Service (DFAS) of his address change. DFAS informed him that his VSI payment would be late this year because he was in need of a physical and an IRR reenlistment contract. He was informed to contact personnel at the Army Reserve Personnel Command (AR-PERSCOM). AR-PERSCOM insisted that he obtain an updated physical, reenlist in the IRR in order to continue receiving his VSI payments, and that his local recruiter would assist him with these items. He was advised by a noncommissioned officer in charge (NCOIC) to reenlist in the IRR; however, he reenlisted but his VSI contract was voided. He later spoke with personnel at AR-PERSCOM who informed him that his reenlistment in the IRR voided his VSI contract.

EVIDENCE OF RECORD: The applicant's military records show he enlisted on 29 July 1980. He continued to serve until he was honorably discharged on 30 June 1995, under the provisions of Army Regulation 635-200, paragraph
16-8, Early Release Program – VSI. He had a total of 14 years, 11 months, and 2 days of creditable service. Item 18 (Remarks) of his DD Form 214 states that he would be paid VSI in the amount of $8,259.24 for 29 years.

The applicant’s records contain a copy of a DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) which shows that he executed his enlistment in the USAR on 21 April 1995 for a period of 3 years.

The applicant’s records contain a copy of AR-PERSCOM Orders D-03-016966, dated 21 March 2001, which shows that he was discharged on 21 March 2000, under the provisions of Army Regulation 135-178.

The applicant provided a copy of his enlistment contract spreadsheet that shows that he enlisted on 6 June 2001, for a period of 6 years.





Information provided by AR-PERSCOM revealed that a letter, subject; VSI Termination, dated 18 June 1999, was forwarded to the applicant with a suspense date of 18 July 1999. He was informed that his physical was outdated.
The applicant was required to undergo a military physical examination at least once every five years. He was informed to obtain an updated physical and to reenlist to get his contract updated. On 18 September 1999, his VSI payment was terminated due to non-response. He also failed to continue his affiliation with the IRR and was discharged on 21 March 2000. The applicant is now affiliated but with a break in service.

Information provided by the DFAS Center in Cleveland revealed that the applicant’s VSI status had been reinstated.

The applicant’s records failed to show an enlistment contract for the period
22 March 2000 to 5 June 2001.

Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. Paragraph 16-8 of this regulation sets forth the requirements for early separation of enlisted personnel due to reduction in force, strength limitations, or budgetary constraints. The service of personnel separated under this paragraph will be characterized as honorable.

Army policy and the 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. The voluntary incentive program was designed to support the Army's drawdown. 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. VSI annual payments will 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.







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

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.

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.

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

1. The evidence of record shows that the applicant was honorably discharged on 30 June 1995, under the Early Release Program – VSI. He was entitled to VSI in the amount of $8,259.24 for 29 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 he executed his enlistment in the USAR
on 21 April 1995, for a period of 3 years. In June 1999, he was informed in writing by AR-PERSCOM that his VSI payment would be terminated, that his physical was outdated, that he was required to undergo a physical examination at least once every five years, and to update his enlistment contract. However, on 18 September 1999, his VSI payment was terminated due to non-response. The applicant also failed to continue his affiliation with the IRR and was honorably discharged on 21 March 2000.

3. The Board notes that the applicant failed to show that he served in a Reserve Component during the period 22 March 2000 to 5 June 2001, for eligibility of his
VSI payments, and that this period of service now constitutes a break in service.

4. The Board notes his contention that his 6-year Reserve enlistment contract was unjust. However, the evidence of record shows that he failed to take the appropriate action to update his physical and to continue serving in a Reserve Component during the period 22 March 2000 to 5 June 2001 which affected his VSI in accordance with applicable regulations. He was required to reenlist to maintain eligibility for VSI.

5. The applicant is now affiliated with a Reserve Component due to his enlistment on 6 June 2001, for a period of 6 years, and reinstatement of his VSI status has been accomplished.

6. In order to justify correction of a military record, the applicant must show to
satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that
would satisfy this requirement.

7. 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

__mm___ __dh___ __kn___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001066203
SUFFIX
RECON
DATE BOARDED	20020514
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20000331
DISCHARGE AUTHORITY	AR 135-178
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 222
2.
3.
4.
5.
6.