RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060011040 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. Kenneth Wright 

Chairperson

Ms. LaVerne Douglas

Member

Ms. Ernestine Fields

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 her Voluntary Separation Incentive (VSI) payments be reinstated. 

2.  The applicant states, in effect, that she was not aware of the VSI requirements until after her expiration term of service.  She contends that she received her VSI payment until 1996 and when she inquired about it she was told she would not receive payments because her status was not correct and that she needed to reenlist.  She claims that she found a reserve unit, reenlisted, and apparently her VSI payments resumed.  However, in 2002, she did not receive her annual payment.  Beginning in August she called the Defense Finance and Accounting Service (DFAS) concerning the payment.  Finally, on 26 September she was informed her status had not been verified and she would not receive her annual payment.  She in turn contacted St. Louis [the U. S. Army Reserve Personnel Command (AR-PERSCOM)] and informed her contact there that she did not receive notification to get a physical or to reenlist.  They discussed where she could get a physical.  

3.  The applicant states that she signed a form stating that she would reenlist in a timely manner and complete a military physical every five years.  She had problems finding a unit that would provide a physical, and she could not get scheduled until December 2002.  She had a physical and an electrocardiogram (EKG) done in December 2002 and the doctor found some irregularities in her EKG and told her to schedule another EKG.  The Ohio Surgeon in the Army National Guard was not able to review her physical until November 2003 and he determined that she did not meet retention standards.  She contends that she was notified that she was medically disqualified and she elected to be transferred to the Retired Reserve.      

4.  The applicant provides seven enclosures outlined in her 24 July 2006 letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
26 September 2001.  The application submitted in this case is dated 24 July 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 30 July 1981 and trained as a unit supply specialist. She remained on active duty through continuous reenlistments.  

4.  A DA Form 4187 (Personnel Action), dated 20 January 1992, shows the applicant submitted a request for voluntary release from active duty under the VSI program effective 27 September 1992.  This form also states that the applicant had been counseled on the entitlements affected by the VSI program (annual payments, employment assistance, pre-separation counseling, relocation assistance, and “requirement in the Ready Reserve for the VSI”).   

5.  On 31 January 1992, the separation authority approved the applicant’s request.

6.  On 27 September 1992, the applicant was honorably discharged in the rank of specialist E-4 under the provisions of Army Regulation 635-200, paragraph 16-8, Voluntary Early Transition Program – VSI.  Based upon her completion of 11 years, 1 month, and 28 days active service her VSI annuity was calculated as $4043.86 annually for 22 years.

7.  On 28 September 1992, the applicant enlisted in the U.S. Army Reserve (USAR) and reenlisted in the USAR on 27 September 1995 for a period of          6 years making her expiration term of service (ETS) 26 September 2001. 

8.  Orders, dated 7 May 1996, show the applicant was honorably discharged from the USAR.  These orders were apparently later revoked.  

9.  The applicant’s term of service in the USAR expired on 26 September 2001.  Discharge orders are not available.  Her VSI payments were apparently stopped after September 2001.

10.  The applicant stated that she contacted DFAS in August 2002, was told       in September 2002 why her VSI payments stopped.  She then contacted              AR-PERSCOM, which told her she needed a physical to be able to reenlist.

11.  The applicant’s physical examination, dated 13 December 2002, indicated an abnormal EKG.

12.  On 30 January 2004, the applicant was notified by the U. S. Army Human Resources Command – St Louis (formerly AR-PERSCOM) Command Surgeon that she was medically disqualified for retention in the USAR.  On 30 August 2005, the applicant acknowledged notification of medical disqualification for further retention in the Active Reserve and/or entry on active duty and elected to transfer to the Retired Reserve.  It was apparently discovered that her term of service expired on 26 September 2001 and she had never reenlisted.  Since she had no military status, no action was taken to transfer her to the Retired Reserve.

13.  Records at the Defense Finance and Accounting Service – Cleveland Center show the applicant received VSI payments from the time of her separation from active duty in 1992 to around September 2001.   

14.  To assist in the draw down of the Army, the VSI was established to provide incentives to Soldiers to voluntarily separate from active duty and accept an appointment or enlistment in, or transfer to, the Ready Reserve or a Reserve component.  Both separation incentive options, the VSI and the Special Separation Benefit (SSB), were offered jointly.

15.  Those choosing the VSI were to receive an annual payment equal to 2.5 percent of his/her annual basic pay, multiplied by 12 and multiplied again by the number of years of active Federal service.  The member had to agree to serve in the Ready Reserve (usually the Individual Ready Reserve where members do not drill but remain subject to recall) for the entire period that he/she received annual payments.  Individuals who elected VSI and chose to affiliate with the Selected Reserve (where members drill and receive basic and/or drill pay) forfeited some or all of their VSI payment while serving.  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.

16.  Paragraph 11-1c of Army Regulation 135-178 (Army National Guard and Army Reserve/Separation of Enlisted Personnel) states that no Soldier may be held in service beyond the normal expiration of term of service unless expiration of term of service is extended by law.  When through administrative error a Soldier is not discharged on the actual date of completion of term of enlistment, reenlistment, or date of completion of statutorily obligated service, a remark will be included in the “Remarks” section of the individual’s DA Form 2 and 2-1 as follows: “Retained beyond normal discharge date for the convenience of the Government.”

17.  Paragraph 1-11a of Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program) states, in pertinent part, that enlisted Soldiers nearing ETS should be counseled on the problems that could occur upon a break in service.  Failure to meet basic eligibility criteria could disqualify the individual for immediate reenlistment and cause a break in service.  Paragraph 1-16d of this regulation states that the reenlistment noncommissioned officer will interview personnel and provide reenlistment counseling.  Paragraph 1-25d of this regulation states that face-to-face interviews with Individual Ready Reserve, Standby Reserve, or Individual Mobilization Augmentee Soldiers who are not on active duty are not practical.  The U.S. Army Human Resources Command (HRC) – St. Louis, Missouri should use alternate channels of communication (that is, correspondence or telephone) to provide counseling.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record confirms that she served honorably for over 11 years on active duty and was entitled to VSI upon her separation in 1992 and enlistment in the USAR.   

2.  The applicant’s contention that she was not aware of the VSI requirements until after her ETS does not appear to be valid.  She should have learned in 1996 that she needed to reenlist to maintain her eligibility for receipt of the VSI.  

3.  Evidence of record shows the applicant’s term of service in the USAR expired on 26 September 2001 and she did not reenlist.  As a result, her VSI payment stopped again.  However, it appears that HRC – St. Louis also shares some responsibility in the applicant’s failure to reenlist.  Since she never reenlisted, discharge orders should have been issued in September 2001.  Yet as late as January 2004 HRC- St. Louis, by notifying her she was medically disqualified for retention in the USAR, did not realize she had no military status based upon her September 2001 ETS.  (Although, in accordance with Army Regulation 135-178, she should have been “Retained beyond normal discharge date for the convenience of the Government.”)  It also appears she was never contacted by a reenlistment noncommissioned officer prior to her ETS, per regulatory guidance.
  
4.  It appears upon finally receiving notification to get a physical examination and reenlist in the USAR, the applicant attempted to comply with these requirements.  However, following a physical examination she was found to have an abnormal EKG and subsequently she was found medically disqualified for retention in the USAR.

5.  The governing regulation states that 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.  Although the applicant did not reenlist in the USAR in 2001 in a timely manner, she was found medically disqualified for retention in the USAR based upon an abnormal EKG taken 15 months after her scheduled ETS.  
6.  Therefore, it would be appropriate to show the applicant extended her enlistment of 27 September 1995 for 36 months, as an exception to policy; was found to be medically disqualified for retention in the USAR on 20 January 2004; and on 1 February 2004 was involuntarily transferred to the Retired Reserve at her request.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 September 2001; therefore, the time for the applicant to file a request for correction of any error expired on 25 September 2004.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

__KW____  ___LD___  _EF___  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 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.  showing that on 25 September 2001 the applicant extended her enlistment for 36 months, as an exception to policy;  

	b.  showing that she was found medically disqualified for retention in the USAR on 20 January 2004;

	c.  showing that she was involuntarily transferred to the Retired Reserve effective 1 February 2004; and 

	d.  reinstating VSI payments and making all back payments that are now due as a result of the above corrections.




___Kenneth Wright_____
          CHAIRPERSON




INDEX

CASE ID
AR20060011040
SUFFIX

RECON

DATE BOARDED
20070410
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
128.1400
2.

3.

4.

5.

6.