BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20090021208 


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 correction of his military records to show that he is entitled to voluntary separation incentive (VSI) payments based on his 3 years of service in the U.S. Army Reserve (USAR).

2.  The applicant states he has been denied his VSI payments because he failed to reenlist in the USAR.  He contends that his VSI contract required only a 3-year Individual Ready Reserve (IRR) commitment.  He further states that the Defense Finance and Accounting Service (DFAS) informed him that his contract is illegal. He contends that he is not at fault and believes he is due the VSI payments.

3.  The applicant provides copies of a DA Form 5691 (Request for Reserve Component Assignment Orders), a DD Form 4 (Enlistment/Reenlistment Document), a DA Form 4187 (Personnel Action), and a DA Form 4187-1 (Personnel Action Form Addendum).

CONSIDERATION OF EVIDENCE:

1.  On 25 January 1989, the applicant reenlisted in the Regular Army (RA).  He had completed 3 years, 8 months, and 4 days of prior active service.

2.  On 8 January 1998, the applicant submitted a DA Form 4187, wherein he requested early separation from the RA under the provisions of the Fiscal Year (FY) 98 Enlisted VSI Program.  He acknowledged that he would be required to serve in the IRR for a period of not less than 3 years to receive payments.

3.  On 4 June 1998, the applicant enlisted in the USAR for 3 years, to be effective upon his discharge from the RA.

4.  On 25 June 1998, the applicant was discharged from the RA under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 16-8.  The narrative reason for separation was early release program - VSI.  The applicant had attained the rank/grade of staff sergeant (SSG)/E-6 and he had completed 9 years, 5 months, and 1 day of creditable active service.

5.  Item 18 (Remarks) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 25 June 1998 contains the statement: "//Voluntary Separation Incentive Paid:  $7855.10 for 26 years//."

6.  On 19 June 2001, the applicant reenlisted in the USAR for 6 years.  A DA Form 3540 (Certificate and Acknowledgment of USAR Service Requirements and Methods of Fulfillment) appears to have been initialed by the applicant at page 2, section IV (Service Obligation), paragraph 5 (Immediate Reenlistment in the USAR).  That paragraph states "I am a current member of the USAR and I am reenlisting to continue my membership in the USAR.  If I am serving under an incurred statutory military service obligation, I have reenlisted in the USAR for a term of service that is equal to, or greater than, the remaining unfulfilled portion of my current statutory military service obligation."

7.  A DD Form 220 (Active Duty Report), dated 19 November 2004, indicates that he served a period of active duty from 12 September to 27 November 2004.

8.  A DA Form 4838 (Oath of Extension of Enlistment or Reenlistment), dated 
15 June 2007, shows the applicant extended his USAR enlistment for a period of 3 months to 18 September 2007.

9.   A DA Form 4838, dated 17 September 2007, shows the applicant had extended his USAR enlistment for an additional period of 3 months to
18 December 2007.

10.  Orders D-06-816552, U.S. Army Human Resources Command, St. Louis, MO, dated 24 June 2008, honorably discharged the applicant from the USAR, effective on the same date.

11.  The National Defense Authorization Act for Fiscal Year 1992 established voluntary incentive programs to support the Army drawdown.  These incentive programs were designed to induce members of the Armed Forces to leave the military voluntarily.  Under both of the programs, the VSI and the Special 
Separation Benefit (SSB), qualifying service members who voluntarily left active duty before their retirement vested received benefits based on their salary at the time of separation and on years of service.  In order to qualify, a Soldier must:  have served on active duty for more than 6 but less than 20 years; have served at least 5 years of continuous active duty immediately preceding the date of separation; if a Reserve, be on the active duty list; and meet such other requirements as the Secretary could prescribe from time to time, which could include requirements relating to years of service; skill or rating; grade or rank; and remaining period of obligated service.

12.  Under the SSB, an eligible member of the armed forces would receive a lump sum payment equal to 15 percent (%) of the Soldier’s annual basic pay multiplied by his years of active service.  Soldiers who applied for this incentive were required to enter into a written agreement to serve in the Ready Reserve for a period of not less than 3 years, in addition to any remaining military service obligation based in statute, following their separation from active duty.

13.   The VSI was an annual annuity payment equal to 2.5% of the Soldier’s annual basic pay multiplied by his years of service and paid for twice the number of years served.  Soldiers approved for VSI must have been appointed, enlisted, or transferred to the Ready Reserve for the entire period they received VSI annual payments.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his contract only required him to fulfill a 3-year service commitment to qualify for VSI payments.  He asks that his VSI payments be reinstated.

2.  The evidence of record shows that the applicant was discharged in 1998 under the early release program based on his request to receive a VSI.  His DD Form 214 shows that his VSI payments were for a period of 26 years.  He was required to remain in the Ready Reserve for the entire 26-year period.

3.  The wording on his DA Form 4187, dated in 1998, appears to speak to the
3-year SSB requirement instead of the continual service requirement for VSI. 

4.  The available evidence appears to show that the applicant was not aware of the service requirements to continue his VSI payments.  Accordingly, it would be unjust to hold him to a decision not to reenlist which ultimately affected his eligibility to continue to receive his VSI payments, knowing that he most likely made that decision without the full knowledge of the consequences.

5.  In view of the circumstances, and in the interest of justice, the applicant's discharge of 24 June 2008 should be voided, he should be restored to the USAR status he held prior to his discharge, and be permitted to reenlist, provided he is otherwise qualified.  He must reenlist within 90 days of the approval of this Record of Proceedings.  If he fails to reenlist, his VSI payments will stop once again.

6.  Furthermore, pending his reenlistment, he should be paid any VSI payments denied as a result of his being discharged in 2008.

BOARD VOTE:

___x_____  ___x_____  ____x_  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:

	a.  voiding his discharge from the USAR on 24 June 2008,

	b.  permitting him to reenlist in the USAR providing he is otherwise fully qualified,

	c.  reinstating his VSI payments upon such reenlistment, and

	d.  pending his reenlistment, paying him any VSI payments that were denied as a result of his discharge from the USAR on 24 June 2008.



      __________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)                                         AR20090021208



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ABCMR Record of Proceedings (cont)                                         AR20090021208



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