IN THE CASE OF:	  

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110009898 


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 back into the Voluntary Separation Incentive (VSI) Program with all benefits as established in his original contract which was signed upon his release from active duty and into the Individual Ready Reserve in 1992.

2.  The applicant states:

* in 2007, he did everything within his power to complete what was needed for reinstatement
* he received no help from the VSI section, even after mailing a letter with a return receipt, numerous phone calls, and speaking to a representative was no help
* he was told he would have to be part of the Individual Ready Reserves (IRR) for as long as he was receiving payments
* in 1997, he received correspondence notifying him of a required physical

* he took the physical, completed the necessary documents,  reenlisted and continued to receive his payments

* in 2001, he and his wife contacted the unit which assisted them in 1997
* it took several months to obtain assistance
* his physician informed him that some time during his enlistment, certain damage had been done to his body and that he would not be fit for duty
* he was told that once you are found not fit for duty, usually, you cannot come back to a fit for duty status
* he did not realize what was happening until he did not receive his payment in 2007
* his wife wrote letters to the President and their state representative
* in 2010, his wife contacted a VSI representative who stated she was sending  the necessary documents to have the matter reviewed
* he and his wife have dedicated 16 years of military service without wavering and did it unselfishly
* he and his wife are only trying to reestablish what is already theirs, except for the physicals and reenlisting, which can be done with the assistance of the VSI section    

3.  The applicant provides:

* self-authored statements
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 

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.  Records show the applicant enlisted in the Regular Army on 25 April 1979.  He completed training and was awarded the military occupational specialty 31G (Tactical Communications Chief).  

3.  The applicant's DD Form 214 shows he was honorably separated on 7 August 1992 under the provisions of the Fiscal Year 1992 (FY92) Enlisted Voluntary Early Transition Program.  Item 18 (Remarks) shows that he was authorized annual VSI payments of $8,411.04 for 26 years. 

4.  On 8 August 1992, the applicant reenlisted in the U.S. Army Reserve for eight years. 

5.  On 18 June 2001, the applicant had his required physical and his records were updated.

6.  On 14 July 2005, the applicant was contacted to determine his reenlistment intentions.  

7.  On 4 August 2006, the applicant requested an extension due to not having his physical completed.  On 7 August 2006, reenlistment documents were mailed to the applicant.

8.  On 5 December 2006 and due to not obtaining a physical, the applicant was honorably discharge based on his ineligibility to reenlist.

9.  In 2007, the applicant's annual VSI payments were stopped.   

10.  The applicant has not provided a copy of his current physical to the Army Reserve Personnel Command (ARPERSCOM). 

11.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharges of enlisted personnel.  Chapter 16 governs Selected Changes in Service Obligations.  Paragraph 16-8 covers eligibility for early separation due to reduction in force, strength limitations, or budgetary constraints.  It states that Soldiers may be separated prior to expiration of term of service or period for which ordered to active duty when specifically authorized. 

12.  Military Personnel Message Number 92-85 provided eligibility requirements for the FY92 Enlisted Voluntary Early Transition Program.  This message stated that a Soldier must have served on active duty for more than 6 years prior to 5 December 1991, but less than 20 years at time of separation; served at least 5 years of continuous active duty immediately preceding the date of separation; completed initial period of enlistment; and was a member of the Regular Army or U.S. Army Reserve on extended active duty.  A Soldier who elected Voluntary Separation Incentive received an annual payment based on years of service and pay grade at the time of separation.  A Soldier who elected Special Separation Benefit received a one-time payment based on years of service and pay grade at the time of separation.

13.  Headquarters, Department of the Army message 281802Z January 1992, clarified issues associated with the voluntary separation incentive 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.  VSI annual payments would be discontinued if the member is separated from the Ready Reserve unless the individual become ineligible to continue to serve due to medical or age limitations in which case the Soldier will be transferred to the Standby Reserve or the Retired Reserve. 

14.  Military Personnel Message Number 93-164 prescribed eligibility requirements and application procedures for the Temporary Early Retirement Authority (TERA).  It provided, in pertinent part, that Soldiers whose application for separation under the Voluntary Separation Incentive/Special Separation Benefit (VSI/SSB) programs was approved on or after 3 May 1993 could not convert to early retirement unless they were currently on active duty in the Regular Army at the time of the announcement of this message; whose separation under the VSI/SSB programs was approved prior to 3 May 1993; who had at least 15 years active federal service as of 31 August 1993; and whose primary military occupational specialty (MOS), as of 31 August 1993 or earlier, was listed in this message.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reinstatement back into the Voluntary Separation Incentive (VSI) Program with all benefits as established in his original contract which was signed upon his release from active duty and into the Individual Ready Reserve in 1992 was carefully considered.

2.  Records show the applicant failed to obtain the required physical which would make him eligible for reenlistment or provide documentation showing he was not medically unqualified to reenlist.   Therefore, based on the foregoing there is insufficient evidence to grant the applicant's request.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

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)                                         AR20110009898



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ABCMR Record of Proceedings (cont)                                         AR20110009898



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