RECORD OF PROCEEDINGS


      IN THE CASE OF

      BOARD DATE:           3 February 2005
      DOCKET NUMBER:  AR2004106234


      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. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Larry J. 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 discharge from the United
States Army Reserve (USAR) be voided and that he be reinstated in a USAR
status that authorizes the continued payment of his earned Voluntary
Separation Incentive (VSI) benefits.

2.  The applicant states, in effect, that he was recalled to active duty,
but was ultimately sent home because he was not needed.  He claims to have
been told that he would be placed back in the Individual Ready Reserve
(IRR).

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

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he served on active duty for

11 years, 6 months and 29 days.  He was honorably separated on 1 March
1994,
in the rank and pay grade of sergeant/E-5 (SGT/E-5), and transferred to the
USAR Control Group, St. Louis, Missouri as a member of the IRR based on
completing a USAR enlistment contract for 3 years.  The applicant
reenlisted in the USAR in 1997 and again in 2002.

2.  The separation document (DD Form 214) issued to the applicant on the
date of his separation from active duty, 10 July 1992, shows he was
honorably separated under the provisions of paragraph 16-8, Army Regulation
635-200, by reason of the Early Release Program-Voluntary Separation
Incentive.  The remarks section of this form confirms that the applicant
was authorized annual VSI payments of $5,421.33 for 22 years.

3.  On 10 January 2003, the applicant was ordered to active duty pursuant
to a Presidential Executive Order of 14 September 2001.  He was instructed
to report to Fort Leonard Wood, Missouri, not later than 20 February 2003.

4.  On 23 April 2003, the applicant requested separation and waiver of a
Physical Evaluation Board (PEB) based on the findings and recommendations
of a Medical Evaluation Board (MEB), which found him unqualified for
continued service because of physical disability that existed prior to
service.  This request was signed by both the applicant and the Fort
Leonard Wood PEB Liaison Officer (PEBLO).

5.  On 3 June 2003, the Chief, Reserve Component Support Services Office,
Human Resources Command (HRC) approved the applicant’s request for early
release of discharge from active duty.
6.  On 10 June 2003, Headquarters, United States Army Maneuver Support
Center and Fort Leonard Wood Orders Number 162-0357, directed the
applicant’s discharge from the USAR on 12 June 2003.  The DD Form 214
issued to the applicant at this time confirms he was separated under the
provisions of Army Regulation 635-40, by reason of disability that existed
prior to service-medical board.

7.  In connection with the processing of this case, an advisory opinion was
obtained from the Transition and Separations Program Manager, HRC, St.
Louis, Missouri.  This official recommends the applicant’s request be
denied.  He states the applicant made false statements in his application
and that his discharge was the result of his request based on his being
physically disqualified.  He states the applicant was never told he would
be placed back in the IRR, as indicated in his application and the request
from the Chief, Personnel Actions, Fort Leonard Wood indicated the
applicant requested discharge.  He further states the applicant contacted
him when he failed to receive his VSI payment and while initially believing
a clerical error had been made, after obtaining the separation documents
from the Transition Center at Fort Leonard Wood, it was clear the applicant
made false statements to him.  As a result, he recommends the applicant’s
request be denied, but if the Board wishes to restore the applicant’s VSI,
it should direct his discharge be voided and he be placed in the Retired
Reserve.

8.  On 2 July 2004, the applicant was provided a copy of the HRC, St. Louis
advisory opinion in order to have the opportunity to respond to its
contents.  To date, he has failed to reply.

9.  Army policy and 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.  The voluntary
incentive program was designed to support the Army’s drawdown.
10.  Headquarters, Department of the Army 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 continued to serve in
the Ready Reserve.  It further stipulated that VSI annual payments will be
discontinued if the member separated from the Ready Reserve unless the
individual became ineligible to continue to serve due to medical or age
limitations, in which case the Soldier would be transferred to the Standby
Reserve or the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The HRC St. Louis advisory opinion accurately indicates the applicant
was discharged at his own request after being physically disqualified for
further service by a MEB and that his discharge orders are valid.  However,
there are important equity issues that need to be considered in this case.
Further, it appears the applicant’s statements to HRC and the Board were
more the result of his misinterpretation of the situation and were not
intentionally misleading as the HRC advisory opinion implies.

2.  The evidence of record confirms that after reporting for active duty
pursuant to a Presidential Executive Order of 14 September 2001, a MEB
found the applicant physically unfit for further service.  Subsequent to
this finding, the applicant requested waiver of a PEB and discharge for
physical disability.  This request was ultimately approved by the HRC
Chief, Reserve Component Support Services Office.  However, this approval
authorized either early release from active duty or discharge.  Fort
Leonard Wood personnel officials published orders directing the applicant’s
discharge from the USAR.

3.  As indicated in the HRC advisory opinion, the applicant requested
discharge; however, it appears clear he did not understand the impact this
request would have on his entitlement to future VSI payments, as evidenced
by his immediately contacting HRC St. Louis officials when he did not
receive his annual VSI payment.  Further, there is no indication that
anyone counseled him on this matter or advised him of his option to
transfer to the Retired Reserve during his separation processing at Fort
Leonard Wood.

4.  By law and regulation, VSI payments are contingent upon the Soldier
continuing to serve in the Ready Reserve.  However, the law provides for
the transfer to the Retired Reserve of Soldiers who becomes ineligible to
continue to serve in the Ready Reserve, due to medical or age limitations,
in order to allow continued annual VSI payments.
5.  The record confirms the applicant served honorably on active duty for
over
11 years and was entitled to the VSI payments for 22 years upon his
separation from active duty in 1994.  It is unreasonable to believe that he
or any other individual would voluntarily accept a discharge instead of
transfer to the Retired Reserve knowing that such an action would suspend
his earned annual VSI payments.

6.  In view of the facts of this case, and in the interest of justice and
equity, it would be appropriate to void the applicant’s 12 June 2003
discharge from the USAR and to show that due to a medical disqualification,
he was instead transferred to the Retired Reserve on that same date.
Further, VSI payments should be resumed and any annual VSI payments that
were lost as a result of the applicant’s discharge from the USAR  should be
paid retroactively.

BOARD VOTE:

___MHM_  ___LJO _  ___LMB _  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.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
voiding the 12 June 2003 USAR discharge of the individual concerned, and by
showing that he was instead transferred to the Retired Reserve on that same
date; by restoring his entitlement to annual VSI payments; and by
authorizing him retroactive payment of any lost VSI payments which resulted
from his discharge from the USAR.




            ____Melvin H. Meyer ____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004106234                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/03                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2003/06/12                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability - EPTS                       |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  291  |128.0800                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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