IN THE CASE OF:	  

		BOARD DATE:	  8 January 2009

		DOCKET NUMBER:  AR20080012499 


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 through a Member of Congress, in effect, reconsideration of his earlier petition for reinstatement of his Voluntary Separation Incentive (VSI) payments.  He further requests eligibility for retired pay at age 60 and transfer to the Individual Ready Reserve (IRR).   

2.  The applicant states, in effect, that he recently received his Notification of Eligibility for Retired Pay at Age 60 (his 20-Year Letter), which shows he completed the qualifying years necessary to receive retired pay at age 60.  He also states that he completed sufficient service for Reserve retirement during his final enlistment and was discharged accordingly on 16 April 2002.  He further states that he is willing to enlist in the IRR; however, in discussions with a recruiter, he was informed he may not be allowed to because he has received his 20-Year Letter and based on his military status during the last six years.

3.  The applicant provides the following documents in support of his application:  Congressional Inquiry Packet; Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis) Transitions and Separations Branch letters, dated 
7 April and 23 May 2008; self-authored statement, dated 1 April 2008; Army Review Boards Agency letter, dated 26 March 2008; HRC-St. Louis Letter, dated 28 January 2008; Application for Correction of Military Record (DD Form 149), dated 1 December 2007; 20-Year Letter, dated 18 January 2008; Army National Guard (ARNG) Current Annual Statement, dated 18 January 2008; and ARNG Retirement Points Statement Supplemental Detailed Report, dated 18 January 2008.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050015881 on 24 August 2006.

2.  During its original review, the Board determined that there was insufficient evidence or information regarding the facts and circumstances surrounding why the applicant did not attend military occupational specialty (MOS) training.  The board further determined that the applicant intentionally quit attending drills, was reduced in grade for inefficiency, and as a result of this misconduct, he was subsequently discharged from the ARNG for unsatisfactory participation and transferred to the United States Army Reserve (USAR) where he continued to receive VSI payments.  Upon the expiration of his enlistment, he was not allowed to reenlist because he did not have an Army MOS and was discharged, at which time his receipt of VSI payments were appropriately stopped.  The Board finally found no justification to reinstate the applicant in the IRR or to pay him back VSI payments.

3.  The applicant’s military records show that he initially enlisted in the U.S. Marine Corps (USMC) and entered active duty on 24 July 1974.  He continued to serve until he was honorably released from active duty after having completed a total of 18 years, 4 months, and 8 days of active federal service on 1 December 1992.  The separation document (DD Form 214) issued the applicant at that time shows he was REFRAD by reason of “Voluntary Discharge for Early Release Program –VSI.”  It also shows that he held the following USMC MOSs: 2861 (Radio Technician), 8421 (Carrier Planner), and 2831 (Microwave Equipment Specialist).

4.  The applicant's Official Military Personnel File (OMPF) shows he received a VSI payment in the amount of $9,784.32 on 1 December 1992.

5.  On 17 April 1996, the applicant enlisted in the New York Army National Guard (NYARNG) for a period of 6 years, in the rank of specialist four (SP4).  Annex A – of the Enlistment/Reenlistment Agreement –Army National Guard (NGB Form 21) includes an entry the applicant initialed that confirms he understood he would have to complete MOS training in MOS 35N.

6.  On 23 September 1998, the applicant was reduced from SP4 to private first class (PFC) for inefficiency, based on his non-participation in unit drills.  On
31 October 1998, he was discharged from the NYARNG by reason of unsatisfactory participation and assigned to the USAR Control Group (Reinforcement).  

7.  The ARNG separation document (NGB Form 22) issued the applicant on 
31 October 1998 shows that he completed no military education and did not hold an Army MOS during the period of service it covered.  It further shows the terminal date of Reserve service obligation was 16 April 2002.

8.  On 16 April 2002, HRC-St. Louis published Orders D-04-216586, which directed the applicant’s honorable discharge from the USAR.

9.  The applicant’s computer generated Transaction History shows that HRC-St. Louis mailed him a letter regarding reenlistment on 15 March 2002.  It also shows, in pertinent part, that he was informed that he no longer held a Reserve Component (RC) status and that because he was unable to reenlist without an MOS, he was now no longer eligible to receive VSI payments.

10.  The applicant provides a copy of his 20-Year Letter, dated 18 January 2008, which confirms his eligibility to receive retired pay at age 60.  It also shows he obtained 20 years of qualifying service as of 31 October 1998.

11.  The applicant also provides an HRC-St. Louis Transitions and Separations Branch Memorandum, dated 7 April 2008, which informed him he no longer was eligible to receive VSI payments and that said payment will not be reinstated.  The Department of Defense Financial Management Regulation, Volume 7a, Chapter 35, Section 3508, Paragraph 8, which states a member must accept a voluntary appointment or enlistment in, or transfer to the Ready Reserve of an RC and must continue to serve in a RC during the entire period of eligibility for VSI, was cited as the authority for the termination of his VSI payments.  The Chief, Adjutant General Directorate, West, supported this decision on 23 May 2008. 

12.  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 policy published to support the military drawdown stipulated that members 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 that the member continued to serve in the Ready Reserve.  It further stipulated that VSI annual payments would be discontinued if the member was separated from the Ready Reserve, unless the individual became ineligible to continue to serve due to medical or age limitations.  In these cases, the member would be transferred to the Standby Reserve or the Retired Reserve.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his VSI installments should be reinstated because he had completed 20 years of service and was eligible for retirement on 31 October 1998, the date of his discharge from the NYARNG, has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law and regulation, a member must accept a voluntary appointment or enlistment in, or transfer to the Ready Reserve of a RC, and must continue to serve in a RC during the entire period of eligibility for VSI.  If the member does not continue to serve in the Ready Reserve, the VSI installments will terminate on the date of separation from the RC, or transfer to the Retired Reserve.  Accordingly, had the applicant been transferred to the Retired Reserve upon completing sufficient service necessary for retirement on 31 October 1998, his eligibility to receive VSI payments would have also terminated at that time.  As a result, completion of sufficient service necessary for retirement is not a basis to support reinstatement of VSI payments in this case.  

3.  The evidence of record does show that the applicant was transferred to the USAR following his 31 October 1998 discharge from the NYARNG and he continued to receive VSI payments until he was discharged from the USAR.  Upon his 16 April 2002 discharge from the USAR, the applicant was denied reenlistment because he did not hold an Army MOS.  He openly admits that during his NYARNG service he stopped going to drill.  As a result of his misconduct, he was discharged from the NYARNG and transferred to the IRR prior to receiving MOS training.  Accordingly, the applicant remains ineligible to reenlist and he cannot be transferred to the IRR as requested.  

4.  In addition, there is no evidence suggesting the applicant would not have been allowed to attend MOS training had he continued to satisfactorily perform his duties in the NYARNG.  It appears clear the applicant's misconduct was the primary cause of his failure to be trained in and to receive an Army MOS.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  The applicant is advised that having completed the 20 years sufficient for retirement, that he is eligible to apply for retired pay at age 60, as evidenced in his 20-Year Letter.  Accordingly, there is no need to place him in the Retired Reserve for him to retain this retirement eligibility.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20050015881 dated 24 August 2006.



      ________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)                                         AR20080012499



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ABCMR Record of Proceedings (cont)                                         AR20080012499


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