RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060005546 


	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.


x
	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 he be reinstated to the Voluntary Separation Incentive (VSI) Program effective the date he was discharged from the United States Army Reserve (USAR). 

2.  The applicant states, in effect, that he was unjustly discharged from the USAR and his payments under the VSI Program were terminated.  He goes on to state that in 1993, he was informed by his sergeant major that because he had not attended the Basic Noncommissioned Officer Course (BNCOC) he would be forced out of the Army because he had been a sergeant for such a long time.  He continues by stating that he was informed that he had two choices, accept separation under the VSI or be separated within 6 months and get nothing.  He also states that he was discharged and enlisted in the Inactive Reserve for 3 years.  He subsequently joined the Ready Reserve to make more money and make ends meet and found when he received his first VSI payment in June 1994, that his payment was minus his Department of Veterans Affairs (VA) disability compensation and his drill pay, which he had not previously been told would happen.  Accordingly, he requested transfer to the Inactive Reserve rather than to work for nothing.  He concludes by stating that he received orders in June 1996, that released him from his Reserve unit and he never received a VSI payment again.       

3.  The applicant provides a letter explaining his application, a copy of an operation report showing he underwent surgery in November 1992, a copy of his report of separation (DD Form 214), a copy of his discharge orders dated 26 May 1993, a copy of his discharge orders from the USAR dated 2 June 1996 and a copy of a letter from a service organization. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 15 June 1993.  The application submitted in this case is dated 6 April 2006.

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 enlisted in the Regular Army on 22 March 1979 for a period of 3 years, training as a military policeman and assignment to Europe.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-5 on 1 May 1985.  He completed the Primary Leadership Development Course (PLDC) on 10 October 1985. 

4.  The available records do not contain the applicant’s request for separation under the VSI Program.  However, his records do show that he enlisted in the USAR on 3 June 1993 and on 15 June 1993, he was honorably discharged in the pay grade of E-5 under the provisions of Army Regulation 635-200, paragraph 16-8 and the Fiscal Year 1993 Enlisted Voluntary Early Transition Program.  He had served 14 years, 2 months and 24 days of total active service and received his first VSI payment of $6,652.95, which was to continue for 28 years, provided he remained in the Ready Reserve.  

5.  On 7 February 1996, while assigned to a troop program unit in Oklahoma City, Oklahoma, the applicant’s commander initiated action to reduce the applicant from the rank of sergeant to the rank of specialist.  He cited as the basis for his recommendation that the applicant had nine unexcused absences during a 1-year period.  The letter was dispatched through Certified Mail and was returned as unclaimed.  The commander also dispatched a memorandum to the applicant on 15 March 1996 informing the applicant that he had been declared an unsatisfactory participant and if he was within 90 days of his expiration of term of service (ETS), he would be discharged in lieu of being transferred to the Individual Ready Reserve (IRR).  On 2 June 1996, he was honorably discharged from the USAR.  There is no indication that the applicant has attempted to reenlist in the USAR since his discharge.    

6.  In the processing of this case a staff advisory opinion was obtained from the Human Resources Command – St Louis, Transitions and Separations Program Manager.  It opines, in effect, that while the applicant may have been misinformed regarding the requirements to maintain his eligibility to receive VSI payments, there is no evidence to show that he made a substantive inquiry or request for relief, until now, during the past 10 years.  Officials at that agency opine that there are no grounds for relief.

7.  The advisory opinion was provided to the applicant for comment and he responded to the effect that he was completely misinformed about the VSI Program and was convinced to get out of the Army under that program.  He further states that he was not discharged for unsatisfactory performance and that if he cannot be reinstated to the VSI Program, that his option be changed to the Special Separation Benefit (SSB) option so as to resolve the issue once and for all.

8.  The Voluntary Incentive Program was designed to support the Army’s drawdown.  Headquarters, Department of the Army (DA) Message 281802Z, dated in 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.  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 contention that he was misinformed of the requirements to maintain his VSI eligibility and that he was unjustly discharged from the USAR has been noted.  However, he has not provided and the available records do not contain a copy of his original voluntary application for separation under the VSI Program.  His records do establish that he had nine unexcused absences and that there is no evidence in the available records to show that he attempted to reenlist in the USAR to reestablish his VSI entitlements.   

2.  Therefore, absent evidence to show that he was improperly informed of his requirement to remain in the Ready Reserve for the entire period of eligibility and given the absence of evidence to show that he attempted to resolve the issue over a 10-year period since his discharge, there appears to be no basis to grant his request.    

3.  While there may have been some confusion initially regarding the issue of drill pay being withheld from VSI payments, that issue was resolved well before the applicant’s discharge.  However, he apparently was not attending drills and thus may not have known that a resolution had been made in that regard.   

4.  In any event, the applicant’s failure to attend drills and subsequent discharge properly served to terminate his VSI entitlements.

5.  Although the applicant now desires to change his option from the VSI to the SSB option, there are no provisions to make such a change and the applicant has not provided sufficient evidence or argument to justify such an exception.    

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 June 1993; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 June 1996.  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

__x ___  ___x__  __x ___  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.




____x______
          CHAIRPERSON




INDEX

CASE ID
AR20060005546
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070320
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         1.128.0800
291/VSI
2.

3.

4.

5.

6.