RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 August 2004
      DOCKET NUMBER:  AR2004099921


      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. Edmund P. Mercanti            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Margaret V. Thompson          |     |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 that his records be corrected to show that he
reenlisted prior to the expiration of his term of service (ETS).

2.  The applicant states that he did not understand the requirements for
maintaining eligibility for Voluntary Separation Incentive (VSI) payments.
He has now been made aware of the requirements and submitted a request for
an antedated reenlistment.  However, because of the considerable amount of
travel that is required by his civilian employment, he waited too long to
be granted an antedated reenlistment administratively.

3.  The applicant does not provide anything in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 September 1995.  The application submitted in this case is
dated 23 November 2003.

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 enlisted in the Regular Army on 22 July 1983, was awarded
the military occupational specialty of comsec equipment repairman, and was
promoted to pay grade E-4.

4.  On 20 September 1992, the applicant enlisted in the Army Reserve for
3 years.  He executed this contract to establish eligibility for the VSI
when he was discharged from the Regular Army on 29 September 1992.

5.  In the processing of this case, an advisory opinion was obtained from
the Human Resources Command (HRC), St. Louis, Missouri.  The HRC stated
that although the applicant was required to maintain military status to
continue to collect VSI payments, he did not reenlist prior to his ETS.  He
was then discharged, which terminated his VSI payments.  More than 3 years
after his discharge, the applicant contacted the HRC, and was given an
opportunity to take a physical examination and then reenlist.  The
applicant did not take the physical examination.  Around 9 months later the
applicant once again requested an antedated reenlistment, and was told that
he still needed a physical examination, and paperwork was sent to him to
facilitate that examination.  In November 2001, since the applicant had
still not taken a physical examination, he was told by the HRC that they
could no longer authorize an antedated reenlistment for him since it had
been over 6 years since his discharge.  The applicant was furnished a copy
of this advisory opinion and was given the opportunity to respond to it.
He opted not to respond.

6.  Army policy and the Department of Defense Military Pay and Allowances
Entitlements Manual (DODPM), based on Public Law 102-190, dated 5 December
1991, as amended, prescribes the qualifications for entitlement to
readjustment benefits for certain voluntarily separated members.  The VSI
was one of the monetary benefits associated with this incentive program.
The voluntary incentive program was designed to support the Army's
drawdown.  HQDA message 281802Z January 1992, clarified issues associated
with the voluntary separation incentive 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.  VSI
annual payments will 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.  Every soldier has a responsibility to manage his or her own career.
The applicant failed to maintain his military status by reenlisting or
extending his enlistment.  This is the most basic responsibility of an
enlisted soldier.

2.  When the applicant failed to reenlist or extend his enlistment, he was
properly discharged.  He was given several chances to execute an antedated
reenlistment after his discharge, which would have resulted in his VSI
payments being reinstated.  He failed to avail himself of these
opportunities.

3.  It would be improper for the Board to use its authority as a substitute
for the applicant’s lack of initiative.

4.  The applicant’s statement that his civilian employment precluded him
from taking the actions necessary to reenlist is not accepted.  While this
argument may be valid for a short period of time, the applicant was
afforded opportunities to reenlist up to 6 years after his discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 September 1995; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 19 September 1998.  However, the applicant did not
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 failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____rjw__  ___le ___  ____mvt _  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.




            ________Raymond J. Wagner___________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004099921                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040826                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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