RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           27 September 2005
      DOCKET NUMBER:  AR20040011522


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ronald E. Blakely             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Mr. LaVerne M. Douglas            |     |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) payments be reinstated.

2.  The applicant states, in effect, he was assigned to the United States
Army Reserve (USAR) because of his entitlement to VSI.  He requests that he
be reinstated into the USAR so that he can receive his full VSI benefit.
He claims he did not understand his USAR reenlistment was important until
it was fully explained to him after his discharge.  He further states he is
now 90 percent disabled and needs every benefit he can get his hands on.
He states he faithfully served on active duty for 13 years and his error of
not reenlisting because he did not fully understand the impact, should not
result in his forfeiting his VSI entitlement.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 16 January 1996.  The application submitted in this case
is dated
16 December 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.  On 20 September 1992, the applicant was honorably released from active
duty (REFRAD) and transferred to the USAR Control Group (Reinforcement),
St. Louis, Missouri. The separation document (DD Form 214) he was issued at
the time show he was separated under the provisions of paragraph 16-8, Army
Regulation 635-200, by reason of “Fiscal Year 1992 Enlisted Voluntary Early
Transition Program”.  The DD Form 214 also confirms he held the rank of
sergeant on the date of his REFRAD and that he had completed a total of
13 years, 1 month and 7 days of active military service.

4.  Item 18 (Remarks) of the applicant’s DD Form 214 verifies the applicant
was authorized to receive annual VSI payments of $6,038.40 for 26 years.

5.  Subsequent to his REFRAD, the applicant entered the USAR to continue
his service in a Ready Reserve status.

6.  On 7 May 1993, while serving in the USAR, the applicant underwent a
quadrennial medical examination.  The Report of Medical Examination (SF 88)
shows he received normal ratings in all areas of the clinical evaluation.
The examining physician entered a comment that the applicant was healthy in
the summary of defects and diagnosis portion of the form, and he assigned
the applicant a Physical Profile of 111111, which indicated he was in good
health at the time.  This examination resulted in a determination that the
applicant was qualified for continued service.

7.  On 16 January 1996, the applicant was honorably discharged from the
USAR. His USAR discharge was directed in United States Army Reserve
Personnel Center (ARPERCEN) Orders Number D-01-610192, dated 16 January
1996.

8.  In connection with the processing of this case, advisory opinions were
obtained from the Human Resources Command (HRC)-St. Louis, Transitions and
Separations Program Manager and the Command Surgeon of the applicant’s USAR
unit.  The HRC official confirms the applicant failed to reenlist in the
USAR in 1996, and failed to contact HRC regarding VSI benefits until
November 2004. He further stated that when the applicant contacted HRC-St.
Louis in 2004, he indicated he was 90 percent disabled and was receiving a
disability check from the Department of Veterans Affairs (VA).  The
applicant was advised that VSI payments were offset by VA disability
payments.  This HRC recommended  denial of the applicant’s request unless
it was determined he was medically disqualified from further service at the
time of his 1996 discharge from the USAR.

9.  The applicant’s unit Command Surgeon also provided an advisory opinion.
 He stated that the available unit records give no indication the applicant
had a significant medical problem that would have required his separation
processing through medical channels, or disqualified him from further
service in the USAR.

10.  On 10 May 2005, the applicant was provided a copy of the HRC-St. Louis
and Command Surgeon advisory opinions in order to have the opportunity to
reply.  To date, he has failed to respond.

11.  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.

12.  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 continued to serve in
the Ready Reserve.  It also stipulated that VSI annual payments would be
discontinued if the member is separated from the Ready Reserve unless the
individual becomes ineligible to continue to serve due to medical or age
limitations in which case the Soldier will be transferred to the Standby
Reserve or the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that when he failed to reenlist in the USAR in
1996, he was not aware of the impact this action would have on his VSI
entitlement.  However, the fact he waited more than eight years to raise
the VSI issue with HRC-St. Louis personnel makes it appear this issue was
not a significant factor in his decision not to reenlist in the USAR in
1996.

2.  By law and regulation a Soldier was required to continue to serve in
the Ready Reserve in order to remain eligible for annual VSI payments, and
the governing law and regulation stipulated that VSI annual payments would
be discontinued if the member were separated from the Ready Reserve unless
the individual became ineligible to serve due to medical or age
limitations, in which case the Soldier would be transferred to the Standby
or Retired Reserve.

3.  The advisory opinions from HRC-St. Louis and the Command Surgeon
confirm the applicant voluntarily elected to be discharged from the USAR at
the expiration of his term of service, and that he was not suffering from a
medical condition that disqualified him from further USAR service at the
time.  Therefore, there is an insufficient evidentiary basis to support
granting the requested relief at this late date.
4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 January 1996, the date of his
discharge from the USAR.  Therefore, the time for him to file a request for
correction of any error or injustice expired on 15 January 1999.  However,
he failed to file within the 3-year statute of limitations and has not
provided a compelling explanation or evidence to show that it would be in
the interest of justice to excuse the failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___REB _  __LF____  ___LMD_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____Ronald E. Blakely____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040011522                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/27                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1996/01/16                              |
|DISCHARGE AUTHORITY     |AR 135-178                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  283  |128.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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