IN THE CASE OF:	  

		BOARD DATE:	    8 February 2011

		DOCKET NUMBER:  AR20100016151 


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 his Member of Congress (MOC), reinstatement of his Voluntary Separation Incentive (VSI) payments, placement in the U.S. Army Reserve (USAR) Individual Ready Reserve (IRR), and payment of all back VSI payments from the year 2000 to the present.

2.  He states, in effect, he accepted early separation from the Regular Army (RA) under the VSI Program and he was discharged on 22 June 1992.  He had the understanding he would receive an annual annuity payment of $6,830.94 for
30 years.  He contends he received VSI payments from 1992 to 2000, but then the payments stopped. 

3.  He states the U.S. Government owes him 10 years of annuity payments that totals over $61,000.00.  He contends his contract does not end until June 2022, which entitles him to 12 more years of annuity payments.

4.  He provided:

* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 22 June 1992
* a copy of a letter from U.S. Army Human Resources Command (AHRC), Transition and Separations Branch, St Louis, MO, dated 22 June 2004




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.  His records show he initially enlisted in the RA on 26 September 1975 for a period of 4 years.  He was honorably released from active duty (REFRAD) on 
25 September 1979 and he was transferred to the USAR Control Group (Reinforcement) to complete his remaining Reserve obligation.  

3.  His record shows he enlisted in the USAR on 26 January 1981 under the Delayed Entry Program (DEP).  He was released from the USAR DEP and he enlisted in the RA on 28 April 1981.  He continued to serve on active duty through a series of reenlistments.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows in item 22 (Physical Status), his last periodic physical examination was performed on 3 March 1988.

5.  His record contains a DA Form 4187 (Personnel Action), dated 25 February 1992, that shows he voluntarily requested separation from the Army under the provisions of the Fiscal Year 1992 VSI Program, with a separation date of 
15 June 1992.  This document also shows his immediate commander recommended approval.

6.  His record contains counseling checklists that are affiliated with the VSI Program.  These checklists confirm he was properly counseled on the VSI Program and that he agreed to serve in the USAR for a period of not less than
3 years beginning one day after his REFRAD.

7.  The available evidence shows his brigade commander approved his request for separation under the VSI Program.  

8.  A copy of Orders 105-18, issued by the 257th Personnel Service Company, dated 5 May 1992, shows he was REFRAD on 22 June 1992 and transferred to the USAR Control Group (IRR).  These orders also show he was approved for VSI payment.

9.  His record also contains a copy of Orders 174-035, issued by Headquarters, U.S. Army Transition Center, Fort Dix, NJ, dated 22 June 1992.  These orders indicated he was discharged from the RA to accept a direct assignment to the USAR Control Group (Reinforcement) and he was not required to physically report.  He was also authorized VSI payment for 30 years.

10.  He provided a copy of his DD Form 214 for the period ending 22 June 1992.  This form shows he was honorably discharged on 22 June 1992 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 16-8 (Enlisted Voluntary Early Transition Program - VSI).  He completed 11 years, 1 month, and 25 days of net active service; 4 years of prior active service; and 1 year, 7 months, and 20 days of prior inactive service.

11.  Item 18 (Remarks) of his DD Form 214 indicated he was authorized a VSI payment in the amount of $6,830.94 for 30 years.

12.  Annex A (Certificate and Acknowledgement of Service Requirements for Individuals Enlisting or Reenlisting in the IRR), dated 17 June 1992, to DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 23 June 1992, shows he enlisted in the USAR for 6 years as a prior-service member with no remaining statutory military service obligation.  Based on this contract, his expiration term of service (ETS) date would have been 22 June 1998.

13.  He provided a copy of a letter from AHRC, Transition and Separations Branch, dated 22 June 2004.  This letter states, in pertinent part, his VSI payments were terminated because he had not reenlisted in the IRR prior to his 21 June 1998 ETS date.

14.  AHRC contends that he was advised on numerous occasions that in order to reinstate his VSI payments, he had to reenlist in the USAR, and in order to do so, he had to take a physical examination.  This information is also shown in the Integrated Web Services (IWS) transaction log.

15.  There is no evidence in the available record and he has not provided any to show he passed the required physical examination for reenlistment in the USAR.


16.  A copy of Orders D-03-017383, issued by the U.S. Army Reserve Personnel Command, St. Louis, dated 21 March 2000, shows he was honorably discharged from the IRR effect the same date.

17.  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).

18.  If the VSI recipient fails to remain eligible or reenlist, the Soldier will be separated from the Reserve and the VSI annual payments will be discontinued.  If a VSI recipient becomes ineligible to continue to serve in the Ready Reserve, through no fault of his or her own, the Soldier will be transferred to the Retired Reserve and continue to receive annual VSI payments for the remaining period authorized for VSI.  At MRD, the VSI recipients will automatically be transferred to the Retired Reserve and continue to receive annual VSI payments for the remaining period authorized for VSI.

19.  The following are situations in which an enlisted Soldier would lose his/her Reserve affiliation:

* The Soldier failed to maintain a valid enlistment contract
* The Soldier failed to maintain a valid address
* The Soldier failed to respond to official correspondence
* The Soldier failed to maintain a valid physical examination
* The Soldier was involuntarily separated for a reason considered to be his fault

20.  Army Regulation 601-280 (Army Retention Program), chapter 7, in effect at the time stated that Soldiers without a Military Service Obligation enlisting or transferring from active duty into the U.S. Army Reserve may be enlisted in the IRR for 3, 4, 5, 6, 7, or 8 years.

DISCUSSION AND CONCLUSIONS:

1.  Based on his 6-year enlistment in the IRR, his ETS date would have occurred on 21 June 1998.  His last physical examination occurred on 3 March 1988 and it would have expired on 2 March 1993.

2.  AHRC advised him on several occasions of his requirement to undergo a periodic physical examination in order to reenlist in the USAR.  However, there is no evidence in the available record and he has not provided sufficient evidence to prove otherwise. 

3.  Since there is no indication and he has not provided sufficient evidence to show he reenlisted in the IRR, his VSI annuity payments were terminated.  Therefore, there is insufficient evidence to grant him the requested relief.

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)                                         AR20100016151



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ABCMR Record of Proceedings (cont)                                         AR20100016151



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