PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 16 October 2003
         DOCKET NUMBER: AR2002081391

         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
Mr. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Hubert O. Fry		Member
Ms. Mae M. Bullock		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.

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2. The applicant requests, in effect, that his 29 May 2001 discharge from the United States Army Reserve (USAR) be voided; that he be given adequate time to reenlist in the Individual Ready Reserve (IRR) or to be transferred to the Standby Reserve for medical reasons; and that his 1995 reenlistment date be corrected to read 14 July 1995 vice 31 January 1995.

3. The applicant states, in effect, that he reenlisted into the IRR on 14 July 1995, but the date recorded in Item 5 (Date of Enlistment/Reenlistment) of his reenlistment contract (DD Form 4/1) was 31 January 1995. He further states that the reenlistment noncommissioned officer (NCO) corrected some dates on his reenlistment paperwork, but failed to correct the date in Item 5. He also indicates that the incorrect date of his reenlistment was not discovered until he contacted the Army Reserve Personnel Command (ARPERSCOM) Variable Separation Incentive (VSI) section in May 2001. At that time, he was informed that he had been discharged from the USAR. In support of his application, he submits copies of the following documents: discharge orders; DD Form 4/1 and 2; and Annex A (DA Form 4688/1, 2 and 3) to his reenlistment contract.

4. The applicant’s military records show that he entered the Regular Army on
15 May 1980, and that he continuously served on active duty for over
12 years until being honorably separated on 15 July 1992.

5. On 7 February 1992, the applicant requested separation under the provisions of the Department of the Army (DA) Voluntary Separation Incentive/Special Separation Bonus (VSI/SSB) program, and he elected to receive a VSI. In connection with his separation, he agreed to serve in the USAR for the entire period he would receive the VSI. The applicant’s separation request was approved and he was authorized to receive VSI annual payments in the amount of $6,340.32. On 15 July 1992, he was released from active duty (REFRAD) accordingly.

6. On 16 July 1992, upon his REFRAD, the applicant enlisted in the USAR for three years. He immediately reenlisted in 1995; however, the reenlistment contract contains conflicting dates. In Item 5 (Date Of Enlistment/Reenlistment), of his reenlistment contract, his reenlistment date is recorded as 31 January 1995. However, in Annex A, the reenlistment date is listed as 14 July 1995.

7. Orders D-05-127063, dated 29 May 2001, issued by Headquarters, US Army Reserve Personnel Command, directed the applicant’s honorable discharge from the USAR on 29 May 2001.

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8. In connection with the processing of this case, an advisory opinion was obtained from the Director, Enlisted Personnel Management, ARPERSCOM. It contains a recommendation that the applicant’s request be denied because he failed to take a medical examination within the required five year timeframe specified in the governing regulation. However, it further indicates that the regulation authorizes a waiver of this disqualification if the member is otherwise qualified.

9. The applicant was provided a copy of the ARPERSCOM advisory opinion and responded on 3 March 2003. In his rebuttal, he states that because this situation began as a result of an administrative error, he kept his original application to the Board short and concise because he through it could be easily resolved. However, based on the ARPERSCOM advisory opinion, he now feels compelled to provide an expanded explanation. The applicant states that because of the lack of promotion opportunity in the Regular Army, he elected to participate in the VSI program after 12 years of honorable active duty service and receiving numerous awards and recognition. The first reenlistment NCO made a mistake just three years later he received reenlistment paperwork from ARPERSCOM with instructions to report to the nearest Reserve unit to reenlist.

10. The applicant claims that on 14 July 1995, he reenlisted for six years. Unfortunately, the reenlistment NCO put the wrong date of 31 January 1995, in the contract, which was not his reenlistment date, but rather the date ARPERSCOM initiated the reenlistment packet. The reenlistment NCO assured the officer administering the reenlistment and the applicant that the date would be corrected and copies would provided to the applicant. The applicant indicates that he received copies of the reenlistment contract two weeks later from ARPERSCOM and a cursory review showed that the date had been corrected on the carbon copies of the contract, which he filed away.

11. The applicant further indicates that in September 1999, he began to have medical problems and tests revealed that he had a blocked artery. In February 2000, he suffered a heart attack, and he has been diagnosed with coronary heart disease. He states that he is currently on medication for high blood pressure, angina, arrhythmia, and hypercholesterol. He claims he contacted ARPERSCOM in May 2001 to see what was necessary for him to be transferred to the Standby Reserve and to find out about his reenlistment paperwork. He states that after being passed office to office for the next several weeks, he was finally told that he was no longer in the system. Eventually, he was told that he was discharged on 31 January 2001. After several people told him there was nothing that could be done, someone finally advised him to apply to this Board for relief.

12. The applicant states that ARPERSCOM should provide counseling on these life changing personnel issues, and while face-to-face counseling is not practical, alternate means of communication could be used to accomplish this critical counseling. He claims that ARPERSCOM did this very well from 1992 through 1995, but since then it has quit, and had they continued to follow this process, he would have known years in advance that was a problem with his expiration of term of service (ETS) date. He states that he has now once again been blindsided with the issue of his physical examination that was raised in the ARPERSCOM opinion, which is the first he has heard of this issue. He also states that the governing regulation requires that Reserve Component (RC) soldiers with prior service must present a letter of authorization to the Military Entrance Processing Station (MEPS) or Army medical facility to receive a medical examination, and he has never been issued this authorization letter. He further states that the regulation requires that a yearly medical screening is accomplished by using a DA Form 3735 and had ARPERSCOM issued this form annually to all IRR soldiers as required, this problem could have been avoided.

13. 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 voluntary separated members. The VSI was one of the monetary benefits associated with this incentive program.

14. The voluntary incentive program was designed to support the Army’s drawdown. Headquarters, Department of the Army (DA) Message 281802Z, dated in January 1992, clarified issues associated with the VSI 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. It further stipulated that VSI annual payments would be discontinued if the member was separated from the Ready Reserve, unless the individual became ineligible to continue to serve. In these cases, the member would be transferred to the Standby Reserve or the Retired Reserve.

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CONCLUSIONS:

1. The Board notes the applicant’s request that his 29 May 2001 discharge from the USAR be voided and he be given adequate time to reenlist in the IRR or to be transferred to the Standby Reserve for medical reasons; and that his 1995 reenlistment date be corrected to read 14 July 1995 vice 31 January 1995, and it finds these claims have merit.

2. The evidence of record confirms that on 16 July 1992, the applicant enlisted into the USAR. It also shows that he immediately reenlisted in 1995; however, Item 5 (Date Of Enlistment/Reenlistment) of his reenlistment contract listed an incorrect reenlistment date of 31 January 1995 vice 14 July 1995, which is the actual date of his reenlistment, which is confirmed in Annex A of the contract.

3. It is clear that that his immediate reenlistment date for his last six year commitment should have been established as 14 July 1995, and not as
31 January 1995, and his ETS date should have been established as 13 July 2001. In the opinion of the Board, it would be unjust to uphold a discharge action that was based on an incorrect ETS, that was the result of an administrative error, and which ultimately impacted the applicant’s VSI eligibility.

4. In view of the circumstances of this case, the Board finds that it would serve the interest of justice to correct the applicant’s record by voiding his 29 May 2001 discharge from the USAR. Further, given the applicant was never informed of that his physical examination had expired and because this requirement is waivable, the Board concludes it would also be appropriate to waive this requirement and to extend the applicant’s USAR enlistment for the time necessary to evaluate his medical condition to determine if he should remain in the IRR or be transferred to the Standby Reserve for medical reasons. Finally, the record should show the applicant should be provided all annual VSI payments due as a result of this correction to his records.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by voiding the 29 May 2001 USAR discharge; extending his USAR enlistment for the time necessary to evaluate his medical condition to determine if he should remain in the Individual Ready Reserve, be transferred to the Standby Reserve for medical reason, or be transferred to the Retired Reserve based on a permanent or medical disqualification; and by providing him any annual VSI payments due as a result of these corrections.

BOARD VOTE:

_MB___ ___HOF__ ___AO__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Arthur A. Omartian
                  CHAIRPERSON

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INDEX

CASE ID	AR
SUFFIX
RECON
DATE BOARDED	2003/10/16
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1992/07/15
DISCHARGE AUTHORITY	AR635-200
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 283	128.0000
2.
3.
4.
5.
6.