RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 September 2005
      DOCKET NUMBER:  AR20040005850


      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. Paul Wright                   |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Larry D. Olson                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be allowed to enlist into
the Individual Ready Reserve (IRR) and that his enlistment be backdated to
the date of his discharge from active duty in the Regular Army for the
purpose of receiving Voluntary Separation Incentive (VSI) payments.

2.  The applicant states he was honorably discharged effective 30 June 1998
under VSI.  During the outprocessing at Fort Sill, Oklahoma, he went to the
U.S. Army Reserve representative on post to receive counseling on the VSI
program and his enlistment into the IRR.  He was given counseling and
signed a number of papers and was told everything was in order for him to
separate and receive VSI payments.  When he did not receive a payment in
2000, he contacted Defense Finance and Accounting Service (DFAS) and was
told he was not shown in their computers and he would need a copy of his
enlistment contract from 1998.  He then tried to find a copy of the
contract to no avail.  He was told to apply to the Army Board for
Correction of Military Records (ABCMR).  The ABCMR advised him that he
needed an updated physical prior to any consideration.  He has subsequently
been physically qualified by the U.S. Army Human Resources Command – Saint
Louis.  He feels that the personnel at Fort Sill are to blame in that they
apparently had never processed a VSI recipient before.

3.  The applicant provides:

      a.  A copy of MILPER Message NR 98-046 for Fiscal Year 1998 (FY98)
Enlisted Voluntary Early Release Program with VSI/SSB.

      b.  A copy of an E-mail response from U.S. Army Human Resources
Command – Saint Louis indicating he is physically qualified for retention.

      c.  A copy of the ABCMR response to his original application dated
22 December 2003.

      d.  A copy of his prior application to the ABCMR dated 26 June 2003
with enclosures.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 June 1998.  The application submitted in this case is
dated
10 August 2004.
2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show he enlisted on 24 April 1985.  He
continued to serve until he was honorably separated in pay grade E-6 on 30
June 1998, under the provision of Army Regulation 635-200, paragraph 16-8,
Enlisted Voluntary Early Transition Program-VSI.  He had a total of 13
years, 2 months, and 7 days of creditable service.  Item 9 (Command to
Which Transferred) shows that he was to be transferred to the USAR Control
Group (Reinforcement).  Item 18 (Remarks) of his DD Form 214 (Certificate
of Release or Discharge from Active Duty) states he would be paid VSI for
26 years.  The amount was determined to be $7663.59 per year.

4.  There is no evidence that the applicant executed a U.S. Army Reserve
Enlistment contract to be effective on 1 July 1998.

5.  In the processing of this case, a staff advisory opinion was provided
by the Director, Enlisted Personnel Management, U.S. Army Human Resources
Command (AHRC)-St. Louis.  The opinion stated that administrative relief
could not be accomplished in accordance with (IAW) Army Regulation (AR)140-
111, paragraph 5-15.  AHRC-St. Louis does not have the authority to
antedate a reenlistment contract of a former Soldier who was not a member
of the Army Reserve, Table 2-1, Rule A.1.  The applicant should have been
enlisted into the Army Reserve IAW AR 601-280 upon his separation from the
Regular Army to continue his VSI payments.  The opinion indicated, however,
that full relief is recommended, and that the Board authorize enlistment
for 8 years with an effective date of 1 July 1998.

6.  The applicant was provided a copy of the favorable opinion for possible
comment prior to consideration of this case.  The applicant responded
within the time frame allotted and concurred on 5 December 2004.

7.  The applicant has provided an E-mail response from AHRC, dated 2 August
2004, which advises that he has been found medically qualified for
retention by the Command Surgeon.  He was further advised no further action
could be taken until the ABCMR makes a decision on his appeal.

8.  The applicant has provided a statement from DFAS, dated 22 June 2002,
that states he was paid two VSI payments on 30 June 1998 and 30 June 1999
in the amounts of $7663.59 and $7017.45.

9.  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, and
responding to all official written and telephonic correspondence.  Enlisted
VSI recipients must reenlist at the end of each term of service until their
mandatory removal date (MRD).

10.  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 MRD, 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.

11.  Chapter 7, Army Regulation 601-280 (Army Retention Program) dated
29 September 1995 in effect at the time states that Soldiers without a
Military Service Obligation (MSO) enlisting or transferring from active
duty into the U.S. Army Reserve may be enlisted in the Individual Ready
Reserve (IRR) for 3, 4, 5, 6, 7, or 8 years.

12.  Army Regulation 140-111 (U. S. Army Reserve Reenlistment Program),
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 and have a current (within five years) qualifying military
physical to be reenlisted.

13.  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 reenlist within 3 months of
their ETS for 3, 4, 5, or 6 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was separated from active duty on 30 June 1998 under the
VSI program and was to receive $7663.59 a year for 26 years.  A condition
of receiving the VSI payments was to remain in the Ready Reserve.

2.  The applicant appears to have tried to meet the conditions of Army
Reserve membership and apparently was advised by the appropriate Reserve
personnel and separation personnel at Fort Sill that all of his paperwork
was in order when he was separated from active duty.

3.  It was not until he failed to receive his third VSI payment that he
found out his enlistment into the Army Reserve he believed had been
prepared by personnel at Fort Sill, Oklahoma was lost.

4.  The applicant has been found medically qualified by AHRC – St. Louis
Surgeon.  Therefore the applicant's contract should be antedated to 1 July
1998, with authorization to receive VSI payments each year until July 2024
based on his retention of eligibility.

5.  Army Regulation 601-210 in effect at the time allowed for an enlistment
into the U.S. Army Reserve for a maximum period of 8 years.  Unfortunately,
the applicant's contract was either lost or not executed either through
error or oversight on the part of the losing command.  Therefore, he should
be allowed to sign an 8-year antedated reenlistment contract.

6.  Army Regulation 140-111 provides for any additional reenlistments in
the U.S. Army Reserve for periods of 3, 4, 5, or 6 years which will allow
the applicant to continue to maintain an active Ready Reserve status to
retain VSI eligibility as long as he meets reenlistment qualifications.

7.  It would be in the interest of justice to grant the applicant an 8-year
antedated reenlistment, effective 1 July 1998.  This action would show that
there was no break in service.  Accordingly, he should be provided VSI
payments for 2000 through 2005 and reinstated for annual VSI payments for
the remainder of his period of eligibility.
8.  It would also be appropriate to provide the opportunity for the
applicant to reenlist in the U.S. Army Reserve provided he is medically and
otherwise qualified.

BOARD VOTE:

__wdp___  __jtm___  __ljo___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by:

      a.  reenlisting him for an eight-year term of service in the Army
Reserve, with an antedated effective date of 1 July 1998;

      b.  providing him VSI payments from 2000 through 2005;

      c.  by restoring his entitlement to annual VSI payments; and,

      d.  providing him the opportunity to continue to reenlist in the U.S.
Army Reserve, provided he is medically and otherwise qualified.



                                  William D. Powers
                            ______________________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040005850                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050908                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(GRANT)                                 |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |112.0000                                |
|2.                      |128.0600                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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