IN THE CASE OF:	  

		BOARD DATE:	  31 January 2012

		DOCKET NUMBER:  AR20110013400 


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 annual Voluntary Separation Incentive (VSI) payments.

2.  The applicant states he enlisted in the U.S. Army in November 1976 and he was honorably released from active duty (REFRAD) in August 1992 under the VSI Program after serving 15 years and 9 months.

	a.  In August 2005, he was ordered to active duty and reported to Fort Jackson, South Carolina.  During his personnel readiness processing he was declared non-deployable and REFRAD.

	b.  It was his understanding he would be placed in the U.S. Army Reserve (USAR) Control Group (Retired Reserve) and continue to receive his annual VSI payments.

	c.  In August 2008, he did not receive an annual VSI payment.  It was at this time that he first learned he had not been placed in the Retired Reserve.  He attempted to correct his USAR status, but after several unsuccessful attempts he became discouraged and gave up.

3.  The applicant provides a self-authored statement, his DD Form 214 (Certificate of Release or Discharge from Active Duty), two memoranda, three orders, and VSI Program information.



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.  The applicant enlisted in the Regular Army (RA) on 23 November 1976.

3.  177th Personnel Service Company, Germany, Orders 126-34, dated 29 May 1992, and U.S. Army Transition Point, Fort Jackson, SC, 1st endorsement to Orders 126-34, dated 15 July 1992, discharged the applicant from the RA effective 26 August 1992.  Both the orders and endorsement show:

	a.  the applicant was approved for VSI payment and

	b.  the statement:  "Soldiers who receive VSI/Special Separation Bonus (SSB) based on service in the Armed Forces and subsequently qualify under [Title 10, U.S. Code (USC), or Title 14, USC] for retired or retainer pay shall have deducted an amount equal to the total amount of VSI/SSB pay not previously recouped.  This amount will be recouped from each payment of retired or retainer pay until the total amount deducted is equal to the total amount of VSI/SSB received."

4.  The applicant's DD Form 214 shows he was honorably discharged on 26 August 1992 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-8, based on discharge with VSI.

	a.  Item 12 (Record of Service) shows he completed 15 years, 9 months, and 4 days of active service and 21 days of prior inactive service.

	b.  Item 18 (Remarks) shows:  "VSI Payment of $8,962.38 (First Payment) for 30 years."

5.  The applicant enlisted in the USAR on 27 August 1992 for a period of 3 years and was assigned to the USAR Control Group (Reinforcement).  He reenlisted in the USAR on 26 August 1995 for a period of 6 years and again on 24 July 2001 for a period of 6 years.

6.  His DD Form 220 (Active Duty Report), dated 10 August 2005, shows U.S. Army Human Resources Command (HRC), St. Louis, MO, 
Orders M-07-502569, dated 1 July 2005, ordered the applicant to active duty.

	a.  His DD Form 220 also shows he entered active duty on 31 July 2005 and departed from the duty station to his home on 13 August 2005.

	b.  Item 21 (Remarks) shows the entry "Not Medical [sic] Qualified for Deployment."

7.  Headquarters, U.S. Army Training Center, Fort Jackson, SC, Orders 223-170, dated 11 August 2005, shows the applicant was REFRAD on 13 August 2005 and assigned to the USAR Control Group (Reinforcement).  The orders show his terminal date of Reserve obligation as 23 July 2007.

8.  HRC, St. Louis, MO, Orders D-07-715829, dated 24 July 2007, honorably discharged the applicant from the USAR effective 24 July 2007.

9.  The applicant provides the following documents:

	a.  HRC, St. Louis, MO, Orders M-07-502569, dated 1 July 2005, show the applicant was relieved from his Reserve Component status and ordered to active duty in support of Operation Iraqi Freedom for a period not to exceed 545 days.  He was also ordered to report to Fort Jackson, SC, on 31 July 2005 for a period not to exceed 25 days for mobilization processing.

	b.  Headquarters, 1st Battalion, 518th Regiment, Fort Jackson, SC, memorandum, dated 4 August 2005, shows the commander requested the applicant's release from mobilization because he was non-deployable due to chronic periodontal disease.

	c.  Headquarters, Victory Brigade, Fort Jackson, SC, memorandum, dated 4 August 2005, shows the commander approved the applicant's removal from mobilization.

	d.  VSI information (two pages) shows the applicant highlighted the following:

		(1)  "What happens if I am involuntarily transferred from the Ready Reserve due to a medical condition, age, failure to select for promotion, or other reasons determined to be no fault of my own (e.g., age or medical)?"

		(2)  "If you are no longer eligible for Ready Reserve Service through no fault of your own, you will be transferred to the Standby Reserve or the Retired Reserve and continue to receive the VSI payments."

	e.  Military Pay Policies and Procedures for Active Duty and Reserve Pay information (two pages) shows the applicant highlighted:  "If the member becomes ineligible to continue to serve in the Ready Reserve due to medical, age, failure to select for promotion, or other reasons determined to be no fault of the member concerned, the member will be transferred to the Standby Reserve or the Retired Reserve of a Reserve Component.  The member will continue to receive annual VSI payments for the remaining period authorized."

10.  Department of Defense Financial Management Regulation 7000.14-R, volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay), governs military pay.

	a.  Chapter 35 (Separation Payments) provides in paragraph 3508 (Voluntary Separation Incentive), 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.

	b.  If the member becomes ineligible to serve for the following reasons, then VSI installments continue for the remaining period authorized if:

		(1)  the separation or transfer is required by reason of the age or number of years of service of the member;

		(2)  the separation or transfer is required by reason of failure of selection for promotion or medical disqualification of the member; or

		(3)  in the case of separation, the member is separated from the Reserve Component for appointment or enlistment in or transfer to another Reserve Component of an Armed Force for service in the Ready Reserve or Standby Reserve of that Armed Force.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his annual VSI payment should be reinstated because he was declared non-deployable in August 2005 and it was his understanding he would be placed in the USAR Control Group (Retired Reserve) and continue to receive his annual VSI payments.

2.  The applicant's contention was carefully considered.

	a.  Records show the applicant was REFRAD on 26 August 1992 and approved for an annual VSI payment of $8,962.38 for 30 years.

	b.  He enlisted in the USAR Control Group (Reinforcement) on 27 August 1992 and reenlisted twice to continue to serve in the USAR Control Group (Reinforcement).

	c.  On 31 July 2005, he was ordered to active duty.  He was declared non-deployable, REFRAD on 13 August 2005, and reassigned to the USAR Control Group (Reinforcement).

	d.  The applicant continued to serve in the USAR Control Group (Reinforcement) for nearly 2 years before he was honorably discharged from the USAR on 24 July 2007 based on his expiration of term of service (ETS).

	e.  There is no evidence of record that shows the applicant was found medically unfit for continued service in the USAR Control Group (Reinforcement).  There is also no evidence that shows he reenlisted in the USAR Control Group (Reinforcement) prior to the date of his ETS.  Accordingly, the applicant was discharged from the USAR.

3.  The VSI Program requires continued service in the Ready Reserve of a Reserve Component during the entire period of eligibility for VSI.  The applicant's affiliation with the USAR was administratively terminated when he was honorably discharged on 24 July 2007.  As a result, he was not eligible to receive any additional annual VSI payments.

4.  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 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)                                         AR20110013400



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ABCMR Record of Proceedings (cont)                                         AR20110013400



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