RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 November 2005
      DOCKET NUMBER:  AR20040008377


      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. Robert J. McGowan             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Mr. Joe R. Schroeder              |     |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 his Voluntary Separation
Incentive (VSI) payment be reinstated.

2.  The applicant further requests that he be placed in the US Army Reserve
(USAR) Retired Reserve and paid all back VSI payments from 1996 to present.

3.  The applicant states he accepted early separation from the Regular Army
(RA) under the VSI program and was discharged on 1 September 1992 with the
understanding he would receive an annual annuity of $8,496.50 for 30 years.
 He received his annuity through 1 September 1996, but has not received it
since that date.

4.  The applicant states he received notice from the US Army Reserve
Personnel Center (ARPERCEN), St. Louis, Missouri that he required an "over
40" physical examination.  He reported to the Military Entrance Processing
Station (MEPS), Buffalo, New York on 3 September 1997 to undergo a physical
examination.  He states he was administered a breathalyzer (breath analysis
of blood-alcohol content level) test which he failed and he was sent home
without receiving his physical examination.

5.  The applicant states he returned to the Buffalo MEPS on 3 March 1998.
He received a 20 April 1998 letter from the MEPS informing him he failed
his physical examination because of "an increase in eye pressure consistant
(sic) with pre-glaucoma."  He adds he has been working since that date to
pass his physical.

3.  The applicant provides:

      a.  A self-authored 9 October 1998 letter to his Representative in
Congress.

      b.  A 2 November 1998 letter from Retention and Entitlements Branch,
ARPERCEN to the applicant's Representative in Congress.

      c.  A 12 February 1998 letter from the Salvation Army stating the
applicant successfully completed a substance abuse program.

      d.  A 14 August 1997 memorandum from ARPERCEN to the applicant
reminding him of his requirement to maintain affiliation with the
Individual Ready Reserve (IRR) and of the need for a current physical.
      e.  A 20 April 1998 letter from the Chief Medical Officer (CMO),
Buffalo MEPS explaining the applicant was medically disqualified for
enlistment due to pre-glaucoma.

      f.  Orders D-12-505221, ARPERCEN, dated 12 December 1995, discharging
the applicant from the USAR effective 12 December 1995.

      g.  Orders 99-38, Headquarters, US Army intelligence Center and Fort
Huachuca, dated 20 May 1992, discharging the applicant from the RA on
1 September 1992.

      h.  SF 88 (Report of Medical Examination), Buffalo MEPS, dated
3 September 1997, showing the applicant was disqualified for enlistment due
to "elevated intraocular pressure."

      i.  SF 93 (Report of Medical History), Buffalo MEPS, dated 4 March
1998, with allied documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged error or injustice
which occurred on 12 December 1995.  The application submitted in this case
is dated 1 October 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 limitation 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 DD Form 214 (Certificate of Release or Discharge From
Active Duty) issued at Fort Huachuca, Arizona shows he served in the RA
from 6 April 1978 to 1 September 1992.  He had 15 years, 11 months, and 1
day of creditable active Federal service.  He was honorably discharged on 1
September 1992 under the FY (Fiscal Year) 1992 Enlisted Voluntary Early
Transition Program with annual VSI payments of $8,496.50 for 30 years.  He
did not elect to undergo a separation physical; the record shows his last
periodic physical was taken on 29 April 1986.

4.  DD Form 4/1-E (Enlistment/Reenlistment Document) contained in the
applicant's records shows that, on 2 September 1992 at Fort Huachuca, the
applicant enlisted in the USAR Individual Ready Reserve (IRR) for a period
of 8 years.  Based on this contract, his expiration term of service (ETS)
date would have been 1 September 2000.

5.  On 5 December 1995, orders were published discharging the applicant
from the USAR.  The reason for the discharge is unknown.

6.  There is no evidence in the record to show the applicant was notified
that he was due a periodic physical examination prior to his 12 December
1995 discharge.  An ARPERCEN memorandum to the applicant, dated 14 August
1997, informed him that he required a physical examination and advised him
to go to the nearest Department of Defense Medical Facility or MEPS to
accomplish his physical.

7.  The applicant reported to the Buffalo MEPS for a physical on 3
September 1997.  He was given a breathalyzer test to measure his blood-
alcohol level.  The test showed an alcohol level of .076, making him
legally impaired in the State of New York.  Contrary to the applicant's
assertion, he was given a physical examination on 3 September 1997 and was
disqualified for enlistment due to "elevated intraocular pressure"
suggestive of pre-glaucoma.

8.  Incomplete documents provided by the applicant show that he returned to
Buffalo MEPS on 4 March 1998 and 1 June 1998.  The results of those visits
are not known.

9.  The 2 November 1998 ARPERCEN response to a Congressional inquiry on the
applicant's behalf suggests that, since 22 October 1996, ARPERCEN
"attempted to work with [applicant] to obtain documents necessary to verify
possible entitlement to receive VSI payments and qualification for
retention." The letter also states "[ARPERCEN] received his physical on
September 18, 1998 and it [was] forwarded to the Surgeon's office for
review."

10.  In the processing of this case, an advisory opinion was sought from
the US Army Human Resources Command (HRC, formerly ARPERCEN).  The HRC
declined to provide an opinion, but stated the applicant "apparently
enlisted in the Reserve . . . for 3 years."  When his enlistment expired,
he did not reenlist, "and apparently took no actions until he realized he
would no longer receive his VSI annuity."  The HRC further stated the
applicant required a current physical and, when he completed it in 1998 he
was found physically disqualified and could not
reenlist.  The HRC recommended the applicant's medical records be reviewed
by the HRC Command Surgeon to determine the earliest date his disqualifying
condition existed and if the condition pre-dated his 12 December 1995
discharge, he could be placed in the Retired Reserve.  The HRC added the
Army Board for Correction of Military Records could "arbitrarily direct he
be placed in the Retired Reserve for medical disqualification and his VSI
be restored."

11.  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).

12.  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.

13.  The following are situations in which an enlisted Soldier would lose
Reserve affiliation:

    • The Soldier failed to maintain a valid enlistment contract.
    • The Soldier failed to maintain a valid address.
    • The Soldier failed to respond to official correspondence.
    • The Soldier failed to maintain a valid physical examination.
    • The Soldier was involuntarily separated for a reason considered to be
      his fault.

14.  Chapter 7, Army Regulation 601-280 (Army Retention Program) in effect
at the time stated 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.

DISCUSSION AND CONCLUSIONS:

1.  The reason for the applicant's 12 December 1995 discharge is not known.
 Based on his 8-year enlistment, his ETS date would have been 1 September
2000.  However, it is noted his last physical examination occurred on 29
April 1986 and would have expired on 28 April 1991.  It is also noted he
declined a separation physical in September 1992; therefore, all of his
time in the USAR and the VSI program would have been invalid.

2.  It appears that the ARPERCEN (now HRC-St. Louis) did not understand the
applicant's service agreement.  The HRC stated incorrectly the applicant
"apparently" enlisted in the USAR for 3 years in 1992 and failed to
reenlist in 1995.  Evidence shows he enlisted for 8 years in 1992 and did
not have to reenlist in 1995.

3.  It also appears that the HRC-St. Louis did not appropriately advise the
applicant of the requirements for maintaining his VSI relative to physical
examinations.  On 14 August 1997, almost 2 years after his discharge, HRC
informed him that he required a physical examination and advised him to go
to the nearest Department of Defense Medical Facility or MEPS to accomplish
his physical.

4.  There is also evidence that the applicant's status has not been
properly monitored by HRC-St. Louis.  On 2 November 1998, HRC responded to
a Congressional inquiry on the applicant's behalf stating since 22 October
1996, they have "attempted to work with [applicant] to obtain documents
necessary to verify possible entitlement to receive VSI payments and
qualification for retention" and his 18 September 1998 physical was
forwarded to the HRC Command Surgeon's office for review.  Yet on 1
December 2004, the HRC is still recommending "[the applicant's] medical
records should be reviewed by the Command Surgeon."  Apparently, nothing
has been done on the applicant's behalf.

5.  It is clear the applicant has suffered an injustice in the matter of
his Reserve affiliation and his VSI payments.  While it is incumbent upon
the applicant to
maintain his Reserve status, it is obvious in this case that he has had
very little assistance in doing so.  Therefore, it is determined the
applicant's records should be corrected as indicated below.

BOARD VOTE:

__tap___  __ena___  __jrs____  GRANT RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  Directing that he undergo a physical examination;

      b.  Conducting a review of the above physical examination and all
other previous examinations dating from 1997/1998 to determine his fitness
to serve in the USAR (IRR);

2.  If the individual concerned is found to be physically fit for duty in
the USAR (IRR), his 12 December 1995 discharge should be voided and he
should be placed back in the IRR and paid all back VSI payments from the
date of his last payment.

3.  If the individual concerned is found to be physically unfit for duty in
the USAR (IRR), he should be transferred to the Retired Reserve and paid
all back VSI payments from the date of his last payment.



                                  Thomas A. Pagan
                             ______________________
                                     CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040008377                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051122                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.1400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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