IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100007159 


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, reinstatement in the U.S. Army Reserve (USAR) so he may continue to receive Voluntary Separation Incentive (VSI) payments.

2.  The applicant states that every year he is having trouble getting the VSI payment that he is supposed to get in September.

3.  The applicant provides copies of:

* Orders D-10-827198, U.S. Army Human Resources Command, St. Louis (HRC-STL), MO, dated 21 October 2008
* Orders D-11-725034, HRC-STL, dated 27 November 2007
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 25 February 1975.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman) and served in that MOS and MOS 11M (Fighting Vehicle Infantryman) until he was discharged on 28 September 1992 after completing 17 years, 7 months, and 4 days of active military service.

2.  The DD Form 214 issued to the applicant at the time of his discharge shows in item 18 (Remarks) that he was entitled to 35 annual VSI payments of $10,286.40.  Item 28 (Narrative Reason for Separation) shows he was discharged under the Fiscal Year 1992 Enlisted Voluntary Early Transition Program.

3.  A DD Form 215 (Correction to DD Form 214), dated 21 July 1994, shows the following:

	a.  Item 18 was corrected to show "VSI PAYMENT:  $10,287.46 FOR 35 YRS 02 MOS."

	b.  Item 28 was corrected by adding "EARLY RELEASE PROGRAM - VSI."

4.  The applicant's record includes three sets of the DD Form 4 series (Enlistment/Reenlistment Document - Armed Forces of the United States) showing he enlisted/reenlisted in the USAR on the following dates for the periods shown:

* 29 September 1992, 3 years
* 17 January 1996, 6 years
* 28 November 2001, 6 years

5.  A DD Form 2808 (Report of Medical Examination) shows that on 16 June 2005 the applicant underwent a medical examination for the purpose of retention in the USAR.  The examining physician wrote the following remarks regarding the applicant's condition:

Severe cognitive dysfunction and movement disorder [consistent with] Huntington's disease.  Based on this exam, I cannot [rule out] other etiologies, but he says he has [family history] of Huntington's and is under care for this by [Department of Veterans Affairs Medical Center]…He may need sheltered living situation in near future…Says he pays bills.  I would question this.

6.  On 2 August 2005, the HRC-STL Command Surgeon approved the finding that the applicant did not meet medical retention standards and referred the case to a non-duty related physical evaluation board (NDR-PEB).

7.  The record is void of documentation showing any further action was taken on the finding that the applicant did not meet medical retention standards.

8.  Orders D-10-827198, HRC-STL, dated 27 November 2007, discharged the applicant from the USAR effective the date of the orders.  This date coincides with his expiration of term of service (ETS) for his last enlistment.  An entry in the transaction history available through the HRC-STL Integrated Web Services indicates the orders were revoked on 27 November 2007.  The applicant's record does not contain the revocation orders.

9.  Orders D-10-827198, HRC-STL, dated 21 October 2008, discharged the applicant from the USAR effective the date of the orders.

10.  The applicant's transaction summary shows he contacted HRC-STL multiple times regarding his VSI payment after he was discharged.  In 2008, he was told he needed to complete a reenlistment contract to continue to receive VSI payments and that he could be placed in the Retired Reserve for medical reasons and still receive VSI payments.  In 2009, he was informed he was not eligible for continued payment since he had been discharged.

11.  The record is void of documentation showing the applicant attempted to reenlist or that he requested transfer to the Retired Reserve.

12.  Army Regulation 40-501 (Standards of Medical Fitness) states Reservists who do not meet fitness standards will be transferred to the Retired Reserve per Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) or discharged from the USAR per Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations).  They will be transferred to the Retired Reserve only if eligible and if they apply.

13.  Army Regulation 140-10 states that eligible Soldiers must request transfer to the Retired Reserve if they are medically disqualified, not as a result of their own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed.

14.  Army Regulation 135-178 states that discharge will be accomplished when it has been determined that a Soldier is no longer qualified for retention by reason of medical unfitness unless the Soldier requests and is granted a waiver under Army Regulation 40-501, as applicable; determined fit for duty under an 
NDR-PEB fitness determination; or eligible for transfer to the Retired Reserve.

15.  The National Defense Authorization Act for Fiscal Year 1992 established voluntary incentive programs to support the military drawdown that followed the end of the Cold War.  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, qualifying service members who voluntarily left active duty before their retirement vested received benefits based on their salary and years of service at the time of separation.  In order to qualify, a service member 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 member, be on the active duty list; and meet such other requirements as the Service Secretaries 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.

16.  The VSI was an annual annuity payment equal to 2.5 percent of his annual basic pay multiplied by his years of service and paid for twice the number of years served.  Service members approved for VSI must have been appointed, enlisted, or transferred to the Ready Reserve for the entire period they received VSI annual payments.  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 which case the Soldier would be transferred to the Standby Reserve or the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's request for reinstatement in the USAR.

2.  The applicant was diagnosed with a serious medical condition that rendered him unfit for continued service in the Ready Reserve, requiring that he be discharged or that he request transfer to the Retired Reserve.  Subsequent to his medical examination in 2005, his case was referred to an NDR-PEB, but there is no evidence showing his case was processed to completion.

3.  The evidence of record shows the applicant consistently took the necessary steps to comply with the requirements for continued participation in the VSI program.  Notably, issues with his VSI payments began shortly after a medical examination showed he suffered from symptoms consistent with Huntington's disease.

4.  The applicant's best interests would have been served by requesting transfer to the Retired Reserve due to his medical disqualification for entry on active duty.  Although Reservists must apply for transfer, considering his diagnosis of severe cognitive dysfunction, there is doubt that he was capable of making such a request on his own.  Instead, he was discharged upon reaching his ETS in 2007 and, for reasons his record does not make clear, discharged again in 2008.

5.  As a matter of equity in view of the above, the applicant's records should be corrected by voiding his discharge orders and transferring him to the Retired Reserve due to medical disqualification.  He should also receive any VSI payments he was denied as a result of his discharge from the USAR.

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 is 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 voiding his October 2008 discharge orders, showing he was transferred to the Retired Reserve due to his medical disqualification effective 21 October 2008, and paying him any VSI payments that were denied as a result of his discharge from the USAR.



      __________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)                                         AR20100007159



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)