IN THE CASE OF:	  

		BOARD DATE:	  30 June 2011

		DOCKET NUMBER:  AR20100019181


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, the spouse of a deceased former service member (FSM), requests the FSM's discharge from the U.S. Army Reserve (USAR) be voided and that he instead be placed in the Retired Reserve to allow for continued payment of his earned Voluntary Separation Incentive (VSI) benefit.  

2.  As a secondary issue, the applicant requests retroactive payment of VSI for those years in which the benefit was denied due to her husband's erroneous discharge.

3.  The applicant states, in effect:

* the FSM was recruited into the active Reserve, from the Individual Ready Reserve (IRR), around September 2002
* the FSM informed the Army of the fact he was receiving VSI, and also that he had had an aneurysm, for which he was being seen by a vascular surgeon
* despite his medical issues, the FSM was approved for enlistment in the USAR
* the FSM's Reserve chain of command began processing him for discharge almost immediately after his enlistment
* during this lengthy processing period, the FSM had little contact with unit leadership and was forbidden from participating in unit assemblies
* the FSM's discharge was finalized in September 2004, at which time he contacted the Defense Finance and Accounting Service (DFAS) and was assured that his VSI payments would not be impacted by his discharge
* the FSM received his annual VSI payment in January 2005; however, this was the last VSI payment he received
* in January 2006, after inquiring with DFAS and the U.S. Army Human Resources Command (HRC), the FSM was told his VSI benefit was terminated because he was discharged for "failure to drill"
* shortly thereafter the FSM was diagnosed with terminal lung cancer and all efforts were focused on his health
* after the FSM's death, the applicant realized she needed to submit within a prescribed timeframe to have this issue corrected

4.  The applicant provides:

* State of North Carolina Certificate of Death
* a letter from the District Officer, State of North Carolina, Division of Veterans Affairs, to DFAS, dated 28 January 2009
* a letter from a Veterans Service Officer (VSO) to the State of North Carolina, Division of Veterans Affairs
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* DA Form 7349-R (Initial Medical Review – Annual Medical Certificate), dated 2 November 2002 (front page only)
* DA Form 7349-R, dated 3 January 2003 (both pages)
* 99th Regional Support Command (RSC) Medical Record Review Cover Sheet, dated 3 January 2003
* memorandum, 99th RSC, Office of the Command Surgeon, dated             8 January 2003
* memorandum, 99th RSC, Office of the Deputy Chief of Staff, G-1, dated 15 January 2003
* letter from the Office of Servicemember's Group Life Insurance, dated    16 January 2005
* VSI earnings statement, for the period 26 January 2004 through              25 January 2005
* DFAS debt statement, dated 2005
* Veterans Group Life Insurance correspondence (2 pages)

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show that after 4 years of previous active service, he enlisted in the Regular Army on 20 August 1981, where he served for 11 years, 5 months, and 6 days prior to his honorable separation on 25 January 1993.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the following entries:
* Item 9 (Command to which Transferred) shows the FSM was transferred to the IRR upon his separation  
* Item 18 (Remarks) shows the FSM was authorized to receive annual VSI payments of $9355.91 for 30 years
* Item 25 (Separation Authority) shows the FSM was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-8
* Item 28 (Narrative Reason for Separation) contains the entry "Fiscal Year (FY) 1993 Enlisted Voluntary Early Release Program" 

2.  On 14 April 1994, the FSM reenlisted in the USAR IRR for a 3-year term.

3.  On 8 March 1996, the FSM reenlisted in the USAR IRR for a 6-year term.

4.  On 12 March 2002, the FSM was discharged from the USAR by Orders Number D-03-211528, U.S. Army Reserve Personnel Command, St. Louis, Missouri (later reorganized as HRC – St. Louis), dated 12 March 2002.  The authority listed in these orders was Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations).

5.  On an unknown date in 2002, he enlisted in the USAR.  A copy of his enlistment contract is not available for review with this case.

6.  According to the Soldier Management System (SMS) database, maintained by HRC, he was assigned to a troop program unit (TPU) of the 99th Regional Readiness Command (RRC), by Orders Number C-10-226146, dated and effective 8 October 2002.

7.  On 2 November 2002, the FSM completed a DA Form 7349-R, wherein he acknowledged he had suffered from an aneurysm in his right iliac artery.  On      3 January 2003, the FSM again completed a DA Form 7349-R, wherein he acknowledged that he had undergone surgeries for both his right and left iliac arteries.  The initial reviewer's notes contain the statement, "Currently has aneurysm 2.3 centimeters to right iliac artery.  Being followed by private physician.  Requires consult for vascular problems." 

8.  On 8 January 2003, the 99th RSC Command Surgeon reviewed the FSM's medical case and determined he was medically unacceptable for retention.  The Command Surgeon's medical determination memorandum states the FSM's medical records will be referred to the 99th RSC, Office of the Deputy Chief of Staff, G-1, for administrative action.

9.  On 15 January 2003, the 99th RSC, Office of the Deputy Chief of Staff, G-1, informed the FSM that he had been determined to be medically unacceptable for continued USAR service.  The G-1 informed the FSM of three options he would be afforded:

* reassignment to the Retired Reserve per Army Regulation 140-10, Chapter 6, if otherwise eligible
* honorable discharge from the USAR
* a review of his medical disqualification by a Physical Evaluation Board

The FSM was instructed to complete an enclosed endorsement (Election of Options form) indicating his selection within 30 calendar days of his receipt of the memorandum.  Failure to respond within 30 calendar days would constitute a waiver of all rights and he would be discharged with an honorable characterization of service.

10.  The FSM's available record does not contain his Election of Options form.  

11.  On 17 September 2004, the FSM was discharged from the USAR by Orders Number 04-261-00004, 99th RRC, dated 17 September 2004.  The authority listed in these orders was Army Regulation 135-178.

12.  The FSM died on 3 October 2008.

13.  In the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, HRC.  The opinion acknowledges the FSM was discharged due to his physical condition; however, his discharge was not due to disability.  Thus, his VSI benefit was correctly terminated.  The advisory official further states that the VSI benefit may be re-started upon the applicant's request; however, the 99th RSC must first revoke the FSM's discharge order and assign him to the Retired Reserve.  The applicant was provided an opportunity to respond to the advisory opinion, but she did not do so.

14.  Army policy and the Department of Defense Military Pay and Allowances Entitlements Manual, based on Public Law 102-190, 5 December 1991, as amended, prescribes the qualifications for entitlement to readjustment benefits for certain voluntarily separated members.  The VSI was one of the monetary benefits associated with this incentive program.  The voluntary incentive program was designed to support the Army’s drawdown.
 
15.  Headquarters, Department of the Army (DA) Message 281802Z, dated January 1992, clarified issues associated with the VSI program via a question and answer format.  It stated that Soldiers 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 the Soldier continues 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 died (in which case VSI annual payments would continue to beneficiaries designated by the Soldier for the remaining period authorized), or 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 and continue to receive annual VSI payments for the remaining period authorized.  

16.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) states that assignment to the Retired Reserve is authorized for USAR Soldiers who are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on AD, regardless of the total years of service completed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of the FSM's record by voiding his USAR discharge of 17 September 2004, and instead transferring him to the Retired Reserve to allow for continued payment of his earned VSI benefit.   The applicant further requests retroactive payment of VSI for those years in which the benefit was denied due to her husband's erroneous discharge.

2.  The evidence of record shows the FSM was enlisted in the USAR in 2002, despite the existence of noted medical issues which ultimately led to a determination of medical unfitness.  The 99th RSC Command Surgeon, upon determining the FSM was medically unfit for further USAR service, referred the FSM's case to the 99th RSC G-1 for administrative action.  The 99th RSC G-1 informed the FSM he was being processed for separation under the provisions of Army Regulation 135-178, chapter 6.  

3.  Although the FSM's Election of Options form is unavailable for review, and notwithstanding the advisory opinion of the Chief, Special Actions Branch, HRC, Army Regulations and the VSI program guidance stipulate that Soldiers who become medically disqualified for continued service are to be transferred to the Retired Reserve.  Therefore, it would be appropriate to void the FSM's discharge order and show he was transferred to the Retired Reserve. 

4.  It would also be appropriate to grant the applicant's request for retroactive payment of VSI for those years in which the benefit was denied due to her husband's erroneous discharge, essentially 2006 through 2011.
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:

* voiding 99th RRC Orders 04-261-00004, dated 17 September 2004 
* showing he was transferred him to the Retired Reserve effective             17 September 2004
* restoring the FSM's entitlement to VSI payments and providing the applicant retroactive payment of any lost VSI payments that resulted from the FSM's erroneous discharge



      _______ _  _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)                                         AR20100013729



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ABCMR Record of Proceedings (cont)                                         AR20100019181



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