MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 31 October 2002
         DOCKET NUMBER: AR2002072661

         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. Curtis L. Greenway		Chairperson
Mr. Donald P. Hupman		Member
Ms. Regan K. Smith		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: In effect, that his transfer to the Retired Reserve be revoked in order to continue to draw his annual Voluntary Separation Incentive (VSI) payments.

APPLICANT STATES: In effect, that his VSI payments should be reinstated due
to an error made by the Army Reserve Personnel Command (AR-PERSCOM). In support of his application he submits his DD Form 214 (Certificate of Release or Discharge from Active Duty), and his orders for transfer to the Retired Reserve.

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

He enlisted and entered active duty on 21 July 1975, as an infantryman.

On 21 May 1992, he underwent a separation medical examination and was found qualified for separation with a physical profile of 111121. His height was 67 inches and his weight was 179 pounds. His screening table weight was 174 pounds for his present age, which was 34 years old.

He continued to serve until he was honorably discharged on 31 July 1992, under the provision of Army Regulation 635-200, paragraph 16-8, Enlisted Voluntary Early Transition Program. He had a total of 17 years and 9 days of creditable service. Item 18 (Remarks) of his DD Form 214 states he would be paid VSI in the amount of $7,698.96. He was transferred to the USAR Control Group Individual Ready Reserve (IRR).

He enlisted in the Army Reserve on 1 August 1992, for a period of 3 years.

The applicant's records contain a copy of Army Reserve Personnel Center
(ARPERCEN) Orders D-01-608705, dated 16 January 1996, which show that he was honorably discharged from the US Army Control Group (Reinforcement) effective 16 January 1996. His records also contain a copy of ARPERCEN Orders D-01-608705R, dated 13 March 1997, which revoked ARPERCEN Orders D-01-608705, dated 16 January 1996.

The applicant’s records contain a copy of ARPERCEN Orders C-03-710027, dated 13 March 1997, which show that he was released from the USAR Control Group (Reinforcement), and was transferred to the Retired Reserve, due to completion of 20 or more years of Reserve duty with an effective date of 13 March 1997.

A copy of the applicant’s Chronological Statement of Retirement Points was provided by AR-PERSCOM which shows that he had completed 17 years of qualifying service for retirement purposes.

According to the Soldier Management System (SMS), the retention NCO at
AR-PERSCOM attempted to reenlist the applicant; however, he did not meet the height and weight standards. The applicant called AR-PERSCOM about not being paid VSI on time and that he was transferred to the Retired Reserve. He discussed his medical condition and stated that he had not had a physical examination since 1992. He was informed that an updated physical was required so that a determination could be made concerning his transfer to the Retired Reserve. He informed the retention office that he would report the matter to higher authorities. He also stated that he was transferred to the Retired Reserve due to a medical disqualification. AR-PERSCOM explained to him that he must have this changed in order to receive his VSI payments. Officials from Transitions and Separations Branch explained that the last order published was a voluntary transfer to the Retired Reserve and due to this order, he was not entitled to VSI. He was given the opportunity to submit medical documentation to show that his medical disqualification occurred before his expiration of term of service (ETS) of 26 May 1995. He was unable to provide medical proof and was informed to apply to this Board.

On 16 January 2002, the Director, Enlisted Personnel Management, AR-PERSCOM, prepared a response to a Member of Congress. The director stated that the applicant must remain affiliated with the Ready Reserve of the Reserve Components and satisfactorily participate for twice the number of active duty years served in order to remain eligible for payments under VSI. The applicant did not reenlist at the end of his contract on 31 July 1995, and was subsequently discharged on 16 January 1996. He requested an exception to policy for an antedated reenlistment and was granted approval to complete an antedated reenlistment with a contract mailed to him on 23 August 1996. His contract was not completed or returned. On 18 February 1997, another antedated reenlistment was forwarded for completion; however, the applicant again did not complete the antedated reenlistment due to his failure to meet the height and weight standards. His physical examination expired in May 1997. In accordance with regulation, you could only antedate a reenlistment contract for 6 years.
AR-PERSCOM was unable to authorize an antedated reenlist because it would exceed the maximum period of service allowable. The applicant was advised that his recourse for appeal was to this Board.

In the processing of this case an advisory opinion was provided by the
AR-PERSCOM, Transitions and Separations Branch. AR-PERSCOM stated that the applicant was a VSI recipient whose VSI payments had been terminated because he voluntarily transferred to the Retired Reserve. The applicant states that he is a victim of an error made by AR-PERSCOM and that he should be



medically retired. A review of the records available show no medical records indicating Gulf War Syndrome or any other disqualifying condition, as he has claimed. Further, there is no indication that any command surgeon had reviewed his records and found him medically unfit, other than failure to meet height-weight standards.

As far back as 1997, personnel at AR-PERSCOM have attempted to advise the applicant on what he should do, and that he must pass a military physical and re-enlist to be eligible for continued VSI payments. In 1998, orders were published transferring the applicant to the Retired Reserve, which was a voluntary order, based on his failure to re-enlist. However, the applicant's SMS notes medical reasons. It appears the clerk at that time took his word, with no medical evidence, and no command surgeon review, which was in error.

In 2000, AR-PERSCOM advised him that his transfer to the Retired Reserve was voluntary, and that he would have to obtain a physical, or demonstrate to the satisfaction of the command surgeon that he had been physically disqualified at the time of transfer and that order could be amended.

In August 2001, AR-PERSCOM explained to him that voluntary transfer to the Retired Reserve terminates VSI. AR-PERSCOM again explained that as a voluntary transfer, he could not receive VSI. AR-PERSCOM informed him that if he could provide evidence of medical disqualification, it would be reviewed. The applicant advised AR-PERSCOM that he had no such documentation.

On several occasions the applicant was informed of the necessary step he must take, that he must have a physical, and provide evidence for any alleged disqualification. The applicant had not done so. The applicant was not the victim of errors in AR-PERSCOM; he was the victim of his own willful non-compliance with what is required for continued receipt of VSI. AR-PERSCOM recommend that VSI not be reinstated for the applicant.

The applicant was provided a copy of this opinion for possible comment.

In his rebuttal the applicant stated that AR-PERSCOM, Transitions and Separations Branch, was not being supportive in assisting him. The opinion was an attempt to have his VSI payments terminated altogether, when it was failure on their part to recommend a decision regarding his VSI due to misinformation. In an attempt to receive his payments yearly, AR-PERSCOM made an error in transferring his records to the Retired Reserve. Their misinformation on the stipulations of the Retired Reserve standards has cost him. He was mislead by AR-PERSCOM's mistake of transferring him to the Retired Reserve. He stated


that he would not have transferred to the Retired Reserve if he knew his VSI would terminate. He stated he was being seen by physicians at Castle Point Veterans Administration (VA) Hospital for several medical conditions. He was diagnosed as having diabetes and was currently under a physician's care.

He called AR-PERSCOM every year since 1997 for support, spoke with a different individual every year, and continued to receive his VSI payments. In 2000, he called and spoke to officials at AR-PERSCOM who informed him that his VSI payment would be released if he sent a copy of his retirement order, dated 13 March 1997. Retention management officials informed him that they did not have this order and that they were unaware that this order was published by AR-PERSCOM. He was informed that if it was their mistake, that they would
notify the finance department and that the check would be mailed out. His VSI payment for 2000 was forwarded and received by him which was an indication that these orders transferring him to the Retired Reserve were a mistake and that the error was made by retention management officials. However, the mistake was not corrected in 2000. He called AR-PERSCOM in 2001 in regards to his 2001 VSI payment. He was informed that due to his transfer to the Retired Reserve, he was no longer entitled to VSI. He concludes by stating that any physical that this Board deems necessary will be completed upon request.

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.

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 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. 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.

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.

Army Regulation 600-9 (The Army Weight Control Program), establishes a weight control program. This regulation applies to all members of the Active Army, the Army National Guard (ARNG) and the U.S. Army Reserve (USAR).
This regulation requires that the body fat composition will be determined for personnel whose body weight exceeds the screening table weight in Table 1 or when the unit commander or supervisor determine that the individual’s appearance suggests that body fat is excessive. Table 1, Weight for Height Table (Screening Table Weight), shows that for a male who is 28 to 39 years of age, and who is 67 inches tall, the weight limit is 174 pounds. Paragraph 20c contains a chart, which shows the maximum allowable percent body fat for males in age group 28 to 39 years old is 24 percent body fat.

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 AR-PERSCOM attempted to reenlist the applicant; however, he did not meet the height and weight standards. The applicant was voluntarily transferred to the Retired Reserve in accordance with regulation based on his failure to reenlist.

2. The records available for review by AR-PERSCOM failed to show any Gulf War Syndrome or any other medical disqualifying condition, as the applicant had claimed. There also was no indication that any command surgeon had reviewed his medical records and found him medically unfit, other than failure to meet height and weight standards.







3. The applicant was advised by AR-PERSCOM on several occasions of the necessary steps to take and that an updated physical was required in order to reenlist and continue eligibility for VSI payments. The applicant informed AR-PERSCOM that that he did not obtain a physical examination and that he was transferred to the Retired Reserve due to medical disqualification.

4. The Board notes that the applicant was unable to provide evidence of medical
disqualification and that he had no such documentation. However, he did state that he was being seen by physicians at the VA hospital for several medical conditions, was diagnosed as having diabetes, and was currently under a physician's care.

5. The applicant was informed that his voluntary transfer to the Retired Reserve would terminate his VSI and that if he could provide evidence of disqualification, that it would be reviewed. However, the applicant informed AR-PERSCOM that he had no such documentation.

6. The Board notes that it is the applicant's responsibility to maintain the Army weight standards and have a current qualifying military physical within 5 years in accordance with regulation; however, he failed to comply.

7. The applicant contends that an error was made by AR-PERSCOM; however, after a thorough review of the evidence provided, the applicant was a victim of his own willful non-compliance with what was required for continued receipt of VSI. Whenever the applicant can provide proof that he had a medical disqualification that existed prior to or coincident with his ETS of 31 July 1995,
he may reapply to this Board.

8. 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.













9. 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

___cg___ __dh___ ___rs___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072661
SUFFIX
RECON
DATE BOARDED	20021031
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19970313
DISCHARGE AUTHORITY	AR 140-10
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1047
2.
3.
4.
5.
6.