IN THE CASE OF:	  

		BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20110003685 


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 reinstatement of his VSI (Voluntary Separation Incentive) payments and continued payment of such benefits. 

2.  The applicant states he was medically discharged from the U.S. Army Reserve (USAR) after being on medical hold.  He tried to reenlist in the Individual Ready Reserve (IRR) when he was leaving the active Reserve but he could not do so because he was on medical hold.  The USAR never gave him the opportunity to reenlist. 

3.  The applicant provides:

* Letter from the Defense Finance and Accounting Service (DFAS)
* Letter from the U.S. Army Human Resources Command (HRC)
* USAR discharge orders

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 13 January 1955. 

2.  He enlisted in the Regular Army (RA) on 28 September 1973 and held military occupational specialty (MOS) 16P (Chaparral Crewman).  He served through a 6-year reenlistment in a variety of stateside and overseas assignments and he attained the rank/grade of staff sergeant (SSG)/E-6.

3.  He was honorably discharged on 27 June 1983.  His DD Form 214 (Report of Separation from Active Duty) show he completed 9 years, 8 months, and 30 days of creditable active service.

4.  He enlisted in the USAR on 28 June 1983 and he was discharged from the USAR on 24 June 1985.

5.  He enlisted in the RA on 2 July 1985 and served through a 6-year reenlistment on 10 December 1987 and a 5-year reenlistment on 7 September 1990. 

6.  On 10 June 1992, he submitted a DA Form 4187 (Personnel Action) wherein he requested voluntary discharge under the Fiscal Year (FY) 1992 VSI program. His counseling checklist confirms 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 discharge. 

7.  He was honorably discharged on 17 August 1992.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 16-8 (Enlisted Voluntary Early Transition Program - VSI).  He completed 16 years, 10 months, and 16 days of net active service.  He was also transferred 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.

8.  On 18 August 1992, he executed a 3-year enlistment in the USAR.  

9.  On 17 January 1996, he executed a 6-year reenlistment in the USAR (IRR) and on 22 September 2001, he executed another 6-year reenlistment in the USAR (IRR).  

10.  On 4 May 2007, he executed a 1-year extension of his 22 September 2001 reenlistment in the USAR.  His new ETS (expiration of term of service) date was established as 21 January 2008.

11.  On 14 May 2007, he was reassigned from the USAR Control Group (Reinforcement) to the 75th Division, effective 11 May 2007.

12.  On 23 July 2008, he was honorably discharged from the USAR, effective 22 August 2008.  His discharge orders state that he was held beyond normal discharge date of 21 January 2008 through no fault of his.  

13.  There is no indication he was discharged for medical conditions(s) or the nature of his medical conditions.  Additionally, there is no indication in his records he reenlisted beyond his discharge date. 

14.  He provides two letters:

	a.  Letter, dated 31 January 2010, from an HRC official who states the DOD offered the VSI as a means of facilitating drawdown.  In order to maintain eligibility, certain conditions must be met.  In accordance with DOD Financial Management Regulation, Volume 7A, Chapter 35, "the member must accept voluntary appointment or enlistment in, or transfer to the Ready Reserve of a Reserve Component (RC) and must continue to serve in a RC during the entire period of eligibility for VSI."  Continued eligibility is authorized under certain conditions such as maximum age, years of service, promotion non-selection, or transfer to another RC.  Any voluntary request made by a member to be transferred to the Retired Reserve or discharge would result in a loss of VSI payments.  

	b.  Letter, dated 12 March 2010, from DFAS wherein an official informed his Member of Congress that the applicant became entitled to annual VSI payment as a result of his separation from active duty with the RA on 17 August 1992.  He was scheduled to receive annual VSI payments through 17 August 2025.  Title 10, U.S. Code, section 1175a(2)(b) states that in order to be eligible under the VSI program, a member must be assigned to a RC.  Members cannot have a break in their Reserve service.  The applicant was discharged from the USAR on 22 August 2008.  He is no longer assigned to a RC; therefore, he is ineligible to receive future BSI payments.  The last VSI payment he received was on 
17 August 2008 for the period September 2007 through September 2008.

15.  The National Defense Authorization Act of FY 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).
16.  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.

17.  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

18.  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.

19.  Title 10, U.S. Code, sections 1174 and 1175, state a member who has received separation pays, SSB or VSI, and later qualifies for retired pay, "shall have deducted from retired pay so much of such pay as is based on the same service."

DISCUSSION AND CONCLUSIONS:

1.  Based on his 6-year enlistment in the IRR, his ETS date would have occurred on 21 August 2007.  He extended his reenlistment contract by 1 year and his new ETS was established as 21 August 2008.  

2.  There is no evidence in his records and he did not provide any evidence that shows he was denied reenlistment and/or he was discharged for medical reasons.  It is possible that he underwent 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 that. 

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)                                         AR20110003685





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110003685



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1