BOARD DATE:	  9 February 2012 
		DOCKET NUMBER:  AR20110012538 


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 of his annual Voluntary Separation Incentive (VSI) payments.

2.  He states his VSI payments were stopped after his May 2000 payment without his knowledge or a reason.  He explains that he was released from active duty (REFRAD) on 31 May 1995 under the VSI Program.  He states he enlisted in the U.S. Army Reserve (USAR) and was scheduled to receive 26 years of VSI payments.  He maintains that his records made no mention of him having to remain in the USAR in order to receive VSI payments.  He adds if he had known this was one of the stipulations of the program, he would have opted to take a lump sum payment or stayed in the Reserve for another 7 years and retire.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and Congressional correspondence.

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 Regular Army (RA) on 17 July 1979.  He served 3 years, 11 months, and 29 days and was honorably REFRAD on 15 July 1983 and transferred to the USAR Control Group (Reinforcement) to complete his remaining Reserve obligation.  On 10 April 1986, he again enlisted in the RA.  

3.  On 7 April 1995, his request for voluntary separation under the Fiscal Year 1995 Enlisted Voluntary Early Release Program with VSI/Special Separation Benefits (SSB) was approved.  The approval authority stated that the applicant "will be counseled per paragraph 5A Military Personnel (MILPER) Message Number 940199, dated 122357Z May 1994."

4.  Orders SEP037-001, dated 25 April 1995, show he was assigned to the USAR Control Group (Reinforcement).  The order lists his terminal date of Reserve obligation as 30 May 1998.  The order also shows he was authorized VSI.  The order instructed him to report to the Reserve Component Transition Noncommissioned Officer (NCO) upon receipt of the orders.  

5.  His DD Form 214 shows he was honorably discharged on 31 May 1995 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-8, early release program, VSI.

	a.  Item 12 (Record of Service) shows he completed a total of 13 years, 1 month, and 20 days of active service and 3 years, 1 month, and 25  days of prior inactive service.

	b.  Item 18 (Remarks) shows:  "VSI payment of $6,441.64 for 26 years."

6.  On 9 May 1995, he enlisted in the USAR for a period of 3 years, effective       1 June 1995.

7.  His record is void of any documents concerning any type of counseling on VSI.

8.  The Human Resources Command (HRC) Integrated Web Services, of the applicant's official military personnel file (OMPF), provides a transaction history and/or information requested by the applicant.  The "Remarks" section of this site shows the applicant contacted HRC on several occasions concerning his VSI.  HRC informed him, as well as the Defense Finance and Accounting Service, that the applicant had no Reserve affiliation.  The agent said the applicant was discharged at his expiration term of service (ETS) on 8 May 1998 and was ineligible to reenlist due to being overweight.

9.  The National Defense Authorization Act for Fiscal Year 1992 established voluntary incentive programs to support the Army drawdown.  The VSI was one of the monetary benefits associated with this incentive program.  MILPER Message, dated 122357Z May 1994, 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 continued to serve in the Ready Reserve.  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.

10.  Paragraph 1-11a of Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program) states, in pertinent part, that enlisted Soldiers nearing their ETS should be counseled on the problems that could occur upon a break in service.  Failure to meet basic eligibility criteria could disqualify the individual for immediate reenlistment and cause a break in service.  Paragraph 1-16d of this regulation states that the reenlistment NCO will interview personnel and provide reenlistment counseling.  Paragraph 1-25d of this regulation states that face-to-face interviews with IRR, Standby Reserve, or Individual Mobilization Augmentee Soldiers who are not on active duty are not practical.  The AHRC-St. Louis, Missouri should use alternate channels of communication (that is, correspondence or telephone) to provide counseling.   

11.  Department of Defense Financial Management Regulation 7000.14-R, volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay), governs military pay.  Chapter 35 (Separation Payments) provides in paragraph 3508 (VSI), subparagraph 350801 (Entitlement), that a member who separates voluntarily from military service before 31 December 2001 could, under conditions prescribed by the Secretary of the Military Department concerned, elect to receive a VSI.  The member must accept voluntary appointment or enlistment in or transfer to the Ready Reserve of a Reserve Component and must continue to serve in a Reserve Component during the entire period of eligibility for VSI.  If the member does not continue to serve in the Ready Reserve, then VSI installments terminate on the date of separation from the Reserve Component or transfer to the Retired Reserve.


DISCUSSION AND CONCLUSIONS:

1.  The applicant argues that he was unaware of the requirement to remain in the Reserve in order to continue to receive VSI payments. 
 
2.  Although his record is void of any evidence indicating he was counseled on his requirement to maintain a Reserve status, the approval authority for his VSI stated that he "will be counseled per paragraph 5A MILPER Message Number 940199, dated 122357Z May 1994."  Additionally, his separating orders show he was instructed to contact the Reserve Component Transition NCO upon receipt of those orders.  Therefore, it is reasonable to assume that at the time he was approved for VSI and his contact with the Reserve agent, and prior to his enlistment in the USAR, he was informed of the requirement to maintain a Reserve status.  

3.  Additionally, he maintains if he had known that one of the stipulations of the program was to remain in the Reserve, he would have opted to take a lump sum payment or stayed in the Reserve for another 7 years and retire.  Evidence of record shows there was no provision under the VSI Program for a lump sum payment at the time of his discharge.  Further, the evidence shows he was ineligible to reenlist due to being overweight and therefore, remaining in the Reserve was not an option.

4.  The VSI Program requires continued service in the Ready Reserve of a Reserve Component during the entire period of eligibility for VSI.  His affiliation with the USAR was administratively terminated when he was discharged on
8 May 1998.  As a result, he was not eligible to receive any additional annual VSI payments.  

5.  In view of all of the foregoing, there is no basis for granting 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)                                         AR20110012538





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ABCMR Record of Proceedings (cont)                                         AR20110012538



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