MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 June 2002
         DOCKET NUMBER: AR2002069024

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Donald P. Hupman, Jr.		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 the orders assigning him to the Retired Reserve be revoked and he be reinstated in the U. S. Army Reserve (USAR) Control Group (Reinforcement) and that his Voluntary Separation Incentive (VSI) be reinstated.

APPLICANT STATES: That since his separation from the Alaska Army National Guard (AKARNG) there have been at least seven different orders, revocations, and corrected copies placing him in different military statuses. In addition, he did not find out until 2001 that a notice that his VSI was being terminated was mailed to him in 1999 to an erroneous Durango, CO address. He believes an injustice was done to him when he was not offered a reenlistment physical, possibly because he lives 500 air miles (in Nome, AK) from the nearest Military Entrance Processing Station (MEPS). Also, he has developed several medical problems which would prevent him from reenlisting. Supporting evidence is as listed on the DD Form 149.

EVIDENCE OF RECORD: The applicant's military records show:

He was born on 19 May 1946. After having had prior service, he enlisted in the ARNG on 17 June 1968 and was discharged on 16 June 1974. He reenlisted in the ARNG on 3 March 1982 and was ordered to active duty in an active guard/reserve (AGR) status. He was promoted to Master Sergeant, E-8 on 9 March 1986. He was separated on 31 August 1994 under the VSI program after completing a total of 15 years, 5 months, and 5 days of creditable active service. He was to receive VSI payments of $12,076.02 annually for 33 years.

On 1 November 1994, the applicant was discharged from the ARNG and transferred to the USAR Control Group (Individual Ready Reserve).

Orders 221-9, State of Alaska, Department of Military and Veterans Affairs dated 3 November 1994 assigned the applicant to the USAR (Retired Reserve). Orders 74-2, State of Alaska, Department of Military and Veterans Affairs dated 15 March 1995 revoked Orders 221-9. Orders 81-1, State of Alaska, Department of Military and Veterans Affairs dated 22 March 1995 discharged him from the ARNG and assigned him to the USAR (Individual Ready Reserve) effective 1 November 1994.

By U. S. Army Reserve Personnel Command (AR-PERSCOM) memorandum dated 9 April 1996, Headquarters, Department of the Army antedated the applicant’s USAR enlistment contract on 22 September 1994. The actual contract this memorandum refers to is not available.

On 27 December 1996, the applicant reenlisted in the USAR for 3 years.

Orders D-03-916245, AR-PERSCOM dated 18 March 1999 discharged the applicant from the USAR effective 26 December 1999.

The applicant’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 9 September 1999.

Orders D-03-916245R, AR-PERSCOM dated 27 September 2000 voided AR-PERSCOM Orders D-03-916245 dated 18 March 1999.

Orders C-10-028938, AR-PERSCOM dated 10 October 2000 transferred the applicant to the Retired Reserve effective 26 December 1999.

On 21 November 2000, the applicant apparently began a military physical examination with the Norton Sound Health Corporation.

In the processing of this case, an advisory opinion was obtained from the Transition and Separation Branch, AR-PERSCOM. That office noted that the applicant was notified that he had an outdated physical examination and was asked to schedule an appointment for one. He was also given the choice of requesting discharge or transfer to the Retired Reserve. He chose to transfer to the Retired Reserve and he therefore was transferred to the Retired Reserve. That action stopped his VSI payments. However, if he does have a medical condition that prevents him from enlisting, it is their recommendation that authority be given to reinstate his annual VSI payments.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He did not respond within the given time frame.

The medical documents the applicant provides show that he received treatment for/diagnoses of a right knee injury (with surgery to repair a torn medial meniscus) in 1992; for a complaint of chest pain (possibly pulmonary rather than cardiac in nature) in 1994; for hip pain and a possible hernia in 1994; for carpal tunnel syndrome (with surgery and good results) and mild rotator cuff tendonitis in 1999; for a rib fracture in 1999; for cough and congestion in 1999; for eczema in 2000; for a colon screening (with a normal colonoscopy in 2001); and for a complaint of vertigo and hearing loss in 2001.

Army Regulation 140-111 prescribes policies and procedures for the U. S. Army Reserve Reenlistment Program. Table 4-1, rule I states that a medical examination which has not been conducted within the time frame specified in Army Regulation 40-501, chapter 8 is a nonwaivable disqualification to reenlistment.

Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation. Paragraph 3-9 states that training and experienced personnel will not be categorically disqualified if they are capable of effective performance of duty with a hearing aid. Paragraph 3-14 states that osteoarthritis, with severe symptoms associated with impairment of function and documented history of recurrent incapacity for prolonged periods, is a cause for referral to a medical evaluation board (MEB). Paragraph 3-23 states that hypertensive cardiovascular disease with diastolic pressure consistently more than 110 mmHg following an adequate period of therapy is a cause for referral to an MEB. Paragraph 3-27d states that chronic bronchitis, severe, with persistent cough and considerable expectoration is a cause for referral to an MEB. Paragraph 3-38h states that chronic eczema, when there is more than minimal involvement and the condition is unresponsive to treatment and interferes with the satisfactory performance of duty is a cause for referral to an MEB. A history of vertigo is disqualifying only for flying duty and several other special duties.

Army Regulation 40-501, paragraph 8-19c(4) states that all members of the Ready Reserve not on active duty will be examined at least once every 5 years during the anniversary month of their last recorded medical examination. Paragraph 9-3 states that it is the responsibility of Reservists to maintain their medical and dental fitness. Paragraph 9-4 states that examinations held in certain places are less expensive than others. If travel to one of these places creates less expense for the Government, travel orders may be issued to Ready Reservists who by law or regulation must have a medical examination. Paragraph 9-5 states that medical examinations made by the examiners cited in paragraph 9-6 will be done without cost to Reservists. Paragraph 9-6c states that Army Reserve medical examinations may be done by (1) medical officers of the Armed Forces Reserve Components who are not on active duty; (2) ARNG medical officers and other Armed Forces Reserve Component medical units (such examinations must be coordinated between the components); (3) medical officers at Armed Forces medical treatment facilities or at MEPS; (4) when the above medical officers are unavailable, physicians or facilities of other Government agencies may be used; and (5) when physicians of other Government agencies are unavailable, civilian physicians may be used with the approval of the local area U. S. Army Medical Activity commander, the local area U. S. Army Medical Center commander, or AR-PERSCOM.

The National Defense Authorization Act for Fiscal Year 1992 established voluntary incentive programs to support the Army drawdown. The VSI was an annual annuity payment equal to 2.5 percent of the soldier’s annual basic pay multiplied by his years of service and paid for twice the number of years served. Soldiers approved for VSI must have been appointed, enlisted, or transferred to the Ready Reserve for the entire period they received VSI annual payments. In the event the soldier became ineligible to continue to serve in the Ready Reserve due to medical or age limitations, the soldier would be transferred to the Standby Reserve or the Retired Reserve and continue to receive annual VSI payments for the remaining period authorized. Soldiers who have received VSI and who subsequently qualify for retired pay shall have deducted from their retired pay a proportionate amount based on the service for which VSI was received. Recoupment will be deducted from each payment of retired pay until the total amount deducted is equal to the total amount of VSI received.

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. In order to justify correction of a military record the applicant must show to the 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.

2. The applicant voluntarily requested separation and received the appropriate VSI payments until he was transferred to the Retired Reserve. The voluntary early separation programs were extensively briefed when they came into effect. As a senior non-commissioned officer, he had a responsibility to himself to become informed on any and all aspects of his separation that would affect his life and future. In this case, he should have been aware that he was required to remain in the Ready Reserve for the entire period he received VSI payments. Despite the numerous orders/amendments he received, he should have been aware that he last enlisted on 27 December 1996 for 3 years, making his expiration term of service 26 December 1999 (as those final orders from AR-PERSCOM correctly indicated). He could not remain in an active status without taking positive action to reenlist before that date. He should have been aware of the requirement to keep his physical examinations up-to-date before November 2000, when it appears he initiated a military physical examination. Had he checked with either a local AKARNG or Reserve unit or with AR-PERSCOM, he could have discovered that he need not have traveled to the nearest (500 miles away) MEPS to take such a physical.

3. In any case, it appears AR-PERSCOM gave the applicant the opportunity to schedule an appointment for a physical examination. It cannot be determined if this was before or after he initiated a military physical examination in November 2000; however, he elected to transfer to the Retired Reserve.

4. There is no evidence in the medical documents the applicant provided to show that any of the medical conditions he had/has would have made him medically unfit for retention. Therefore, there is insufficient evidence to indicate that it would be proper or equitable to reinstate his annual VSI payments.

5. 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

__CLA__ __BJE__ __DPH___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069024
SUFFIX
RECON
DATE BOARDED	2002/06/13
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	135.03
2.	128.22
3.
4.
5.
6.