IN THE CASE OF:	

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080011413 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his reenlistment contract in the Florida Army National Guard (FLARNG) be corrected to show he enlisted prior to
30 August 2005.  In the alternative, he requests that his Voluntary Separation Incentive (VSI) payment be reinstated.  

2.  The applicant states, in effect, that in order for him to receive his VSI payments, he must be certified by the ARNG (sic).  His Individual Ready Reserve (IRR) status terminated because he needed a physical.  He was never aware of this.  He tried several times to get a physical examination, but was unable to accomplish it.  He went enlisted in the ARNG in order to get his VSI payments reinstated.   

3.  The applicant did not provide additional documentary evidence in support of this application.    

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at Fort Drum, New York, shows he served in the Regular Army from 11 March 1986 through 30 July 1992.  This document also shows he had
2 years, 11 months, and 28 days of prior active duty, for a total of 9 years,
4 months, and 19 days of creditable active Federal service.  

3.  The applicant was honorably discharged on 30 July 1992 under the FY (Fiscal Year) 1992 Enlisted Voluntary Early Transition Program with annual VSI payments of $4,189.80 for 18 years.  He was transferred to the USAR Control Group (Reinforcement).

4.  DD Form 4/1 (Enlistment/Reenlistment Document) contained in the applicant's records show that, on 31 July 1992, the applicant enlisted in the USAR for a period of three (3) years.  His Chronological Statement of Retirement Points shows that he served in the USAR until 30 August 2005.  His record also shows that he had several short periods of service in the FLARNG, 25 June 1993 –
24 June 1994; 21 December 1994 – 1 December 1997; and 
26 February 2000 – 20 December 2001.  

5.  Human Resources Command (HRC), St. Louis, Orders D-08-528729, dated 30 August 2005, discharged the applicant from the USAR Control Group (Reinforcement).

6.  All of the specific facts and circumstances surrounding the applicant's discharge from the ARNG are not contained within the official record.  However, a review of the applicant's Soldier Management System (SMS) transactions show the following: 

	a.  On 23 March 2005, HRC-St. Louis mailed the applicant information regarding his upcoming expiration term of service (ETS) date and reenlistment information.

	b.  On 25 April 2005, the applicant called HRC-St. Louis regarding his upcoming reenlistment date and he was informed that he needed to schedule a physical examination appointment because his physical had expired.  

	c.  On 26 April 2005, HRC-St. Louis indicated that the applicant may have to be extended for reenlistment in order to get an physical examination.

	d.  On 3 May 2005, HRC-St. Louis ordered the applicant to report to the Halifax Medical Center for a periodic physical examination on 27 May 2005.

	e.  On 3 June 2005, the applicant was reported as a "no show" for his periodic physical examination scheduled on 27 May 2005.  He did not cancel or rescheduled the appointment more than 24 hours in advance.  Per his contract, a "no show" fee was assessed to the HRC.  His orders to report for a physical examination were revoked.

	f.  On 19 July 2006, the applicant called HRC-St. Louis asking about his VSI payments.  He was informed that he had been discharged and advised that he needed to re-enlist, with a back-dated enlistment contract.  He began arguing with the HRC advisor and hung up on the advisor.

	g.  The applicant called HRC-St. Louis on 1 August 2006 regarding his VSI again and was informed that he needed an ante-dated enlistment contract.  The applicant also indicated that he had sent his physical examination by "fax" at least 3 times and HRC-St. Louis did not receive it.

	h.  On 15 August 2006, the applicant called HRC-St. Louis wanting to talk to a supervisor.  He stated that he had faxed his physical examination 3 times but for some reason it was not received by HRC-St. Louis.  He faxed it again and it was received.

	i.  On 16 August 2006, HRC-St. Louis Surgeon General returned the applicant's physical because it was incomplete.  The applicant was so informed.

	j.  On 5 January 2007, the applicant called HRC-St. Louis and informed them he still had not gotten a physical examination.  He was informed that he had to go to a military installation and get a physical at his own expense.  He was faxed a listing of the forms that needed to be filled out and all the tests that needed to be done.

	k.  On 20 September 2007, the applicant called HRC-St. Louis very upset stating that he had been trying to reenlist for 2 years and obtain an ante-dated enlistment contract in order to get his VSI payments.  He indicated that he had taken 2 physicals but they were not accepted by the Surgeon General’s Office because they were not the right type of physical.  The applicant indicated that he could get a physical at a local Air Force base if HRC-St. Louis would provide the necessary documentation.  HRC-St. Louis indicated that they could not publish orders for him to report for a physical, they could only provide a memorandum requesting a physical.

	l.  On 26 September 2007, HRC-St. Louis informed that applicant that the HRC could not authorize him to receive a physical at any military installation.  

	m.  On 4 December 2007, the applicant called HRC-St. Louis to inform them that he had a physical and was enlisting in the ARNG, so that he could get certified to receive his VSI.  HRC-St. Louis advised him that if he joined the ARNG they could not do a back-dated reenlistment contract.  He was also advised that if he had a physical, that HRC-St. Louis could certify him and give him an ante-dated reenlistment, and that he could later transfer to the ARNG.

	n.  On 11 December 2007, HRC-St. Louis received a copy of the applicant's physical examination and it was still missing documents.  The applicant was called and advised that the physical was incomplete.

	o.  On 31 December 2007, the applicant enlisted in the FLARNG for a period of 6 years.

	p.  On 14 April 2008, the applicant called HRC-St. Louis and stated that he was having problems getting the ARNG to certify him through DFAS to receive his VSI.  

7.  The National Defense Authorization Act of Fiscal Year 1992, to assist in maximizing voluntary separation during the drawdown period of military forces, established a separation incentive called the VSI.  The VSI pays an annual annuity payment equal to 2.5 percent of the Soldier’s annual basic pay at separation from the active Army multiplied by the Soldier's number of years of service and paid for twice the number of years the Soldier had served at the time of separation.  Soldiers approved for VSI must be appointed, enlisted, or transferred to the Ready Reserve for the entire period that they receive VSI annual payments.  A VSI recipient must remain eligible for retention or reenlistment in the Ready Reserve by maintaining Army weight standards, completing a military physical examination every five years, keeping their residence address and phone number updated, and responding to all official written and telephonic correspondence.  Enlisted VSI recipients must reenlist at the end of each term of service until their mandatory removal date (MRD).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his annual VSI payments were stopped when he was discharged from the USAR Control Group (Reinforcement).  He contends that he did not know that he needed a physical examination in order to reenlist, and now that he has finally enlisted in the FLARNG, he cannot get the ARNG to provide him with an ante-dated reenlistment contract in order for his VSI payments to be reinstated. 

2.  A review of the applicant's SMS Transactions shows that on 23 March 2005, HRC-St. Louis mailed him information regarding his upcoming ETS date and reenlistment information.  On 25 April 2005, the applicant called HRC-St. Louis regarding his upcoming reenlistment date and he was informed that he needed to schedule a physical examination appointment because his physical had expired. HRC-St. Louis published his orders to report for a periodic physical examination on 27 May 2005, and the applicant failed to report as ordered.  He was considered a "no show" and HRC-St. Louis was assessed a "no show" fee.  Since he did not meet the eligibility requirements for reenlistment, he was discharged and his VSI payments stopped.  He was informed that he would have to obtain a physical examination at his own cost.

3.  Over a two-year period the applicant called HRC-St. Louis repeatedly regarding his reenlistment; however, he never complied with the requirement to furnish a complete physical examination.  HRC-St. Louis was responsive to his inquiries and tried, painstakingly, to assist him in obtaining a physical examination, but the applicant failed to comply with the requirement.  Even the physical examination he apparently used for enlistment in the FLARNG was reviewed by HRC-St. Louis and considered incomplete.

4.  Although the applicant is now a member of the FLARNG, there is no basis upon which to recommend that his enlistment contract be ante-dated, thus giving him credit for service he did not perform in the FLARNG.  Further, HRC-St. Louis provided the applicant with a remedy to his problem – complete his physical, then HRC-St. Louis could certify him and give him an ante-dated reenlistment contract to continue his VSI payments.  The applicant failed to respond to this advice and, to date, he is ineligible for reenlistment in the USAR because he has not complied with the periodic physical examination requirement required for reenlistment in order to maintain his VSI payments.

5.  Given the above, there is no basis upon which to grant the applicant's request.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




      _______ _   X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080011413



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ABCMR Record of Proceedings (cont)                                         AR20080011413



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