IN THE CASE OF:	  

		BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110016091 


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, her voluntary separation incentive (VSI) payments be reinstated.

2.  The applicant states:

	a.  she wants to be reinstated back into the VSI program with all benefits established in her original contract that was signed upon her release from active duty and transfer into the Individual Ready Reserve (IRR) in 1992.

	b.  in 2007, she realized she needed to take a physical and she did everything within her power to complete what was needed with no help from the VSI section.

	c.  in 1992, she participated in the VSI program and was told she would have to be part of the IRR for as long as she received VSI payments.  In 1997, she was contacted and told she needed to have a physical to receive her separation pay.  She got a physical, reenlisted, and received her payment.

	d.  in 2001, she got a physical, reenlisted, and received her payment.

	e.  in 2007, she was going through a lot of personal events in her life.  When she did not receive her VSI payment in April 2007 she attempted to contact someone to help her.  She was continually transferred to phones that would just ring or she would be transferred to a phone to leave a message and she would not get a call back.  She finally contacted someone in February 2008 and she was told she needed to get a physical.  She did so and mailed the physical form in.  After a couple of months she inquired about the physical and was told she had provided the wrong form.  She contacted her primary doctor to set up an appointment to have the physical transcribed onto the correct form.  A few months later she called and was told the physical form had not been received.  She made a copy of the physical and mailed it return receipt.

	f.  in 2009, she wrote a letter to the VSI section, her Senator, a Georgia State Representative, and President Obama.  In 2010, she contacted someone in the VSI section and was told they had received her letter and they didn't understand why she hadn't received a response.  She was informed she needed to appeal to this board to have her VSI payments reinstated.

	g.  she dedicated 16 years of her life to the military and it is not fair for her to be denied the benefits that she is entitled to receive because of someone else's negligence.  Someone clearly dropped the ball and all this could have been avoided.  She would like to have her status reinstated and receive back VSI payments from 2007 to the present.    

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Three mail receipts

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.  Having completed 4 years of active service in the Regular Army (RA), the applicant again enlisted in the RA on 9 February 1981.  She served as a unit supply specialist and patient administrative specialist.  She remained on active duty through continuous reenlistments.  On 15 April 1992, she was honorably discharged under the provisions of Army Regulation 635-200, chapter 16-8, under the Fiscal Year 92 Enlisted Voluntary Early Transition Program and transferred to the U.S. Army Reserve (USAR) Control Group (IRR).  Based upon her completion of 15 years, 2 months, and 7 days of active service, her VSI annuity was calculated as $6,829.43 annually for 30 years.

3.  On 16 April 1992, the applicant enlisted in the USAR for a period of 8 years and she reenlisted on 16 April 2000 for a period of 6 years.  

4.  Orders, dated 18 April 2006, show she was honorably discharged from the USAR.  Her VSI payments were apparently stopped after 2006.

5.  The Army Human Resources Command (AHRC) Soldier Management System (SMS) indicates that:

   a.  On 4 August 2006, the applicant requested to reenlist in the IRR.  

	b.  On 1 March 2007, the applicant requested to reenlist.  She stated she was going through recruiters and not receiving any assistance.  She was informed she was discharged.  She requested to speak with someone for assistance.  

	c.  On 2 March 2007, the applicant requested an antedated reenlistment.    She was informed she had an expired physical and she would need to obtain a physical at her own expense.

	d.  On 18 April 2008, the applicant tried to reach a point of contact concerning her reenlistment.  

   e.  On 12 May 2008, the applicant inquired about a retention reenlistment.
   
   f.  On 12 May 2008, the applicant inquired about a physical that she took last year.
   
   g.  On 12 January 2009, the applicant requested to speak with a sergeant first class.
   
	h.  On 17 February 2009, AHRC received a letter (dated 14 January 2009) from the applicant regarding retention.

	i.  On 26 February 2009, HC received a letter from the applicant referencing reenlistment and VSI payments for her and her husband.




6.  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.  Headquarters, Department of the Army, message, dated 281802Z 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 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.

7.  Paragraph 1-11a of Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program) states, in pertinent part, that enlisted Soldiers nearing expiration term of service (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 noncommissioned officer 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.   

DISCUSSION AND CONCLUSIONS:

1.  The governing regulation states VSI annual payments will be discontinued if the member is separated from the Ready Reserve.

2.  Evidence of record shows the applicant was discharged from active duty in 1992 under the Early Release Program for VSI.  She was transferred to the IRR as required in order to receive annual VSI payments. 

3.  Evidence of record shows her term of service in the USAR expired on 18 April 2006 and she did not reenlist.  As a result, her VSI payment stopped.  However, it appears that AHRC-St. Louis also shares some responsibility in the applicant’s failure to reenlist.  Evidence shows she contacted that office requesting to reenlist in the IRR 4 months after she was discharged in April 2006.  She continued to make calls and provide written correspondence to that office regarding her reenlistment until February 2009.  It also appears she was never contacted by a reenlistment noncommissioned officer prior to her ETS date, per regulatory guidance.

4.  Therefore, as a matter of equity, it would be appropriate to revoke the 18 April 2006 USAR discharge orders and show the applicant reenlisted on 18 April 2006 for a period of 6 years allowing her VSI to be reinstated.  She must ensure she reenlists prior to 17 April 2012.

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:

   a.  voiding her USAR discharge orders, dated 18 April 2006;

   b.  showing that on 18 April 2006 the applicant reenlisted in the USAR for a period of 6 years; and  

	c.  reinstating VSI payments and paying her all back payments that are due as a result of the above corrections.



      _______ _   _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)                                         AR20110016091



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ABCMR Record of Proceedings (cont)                                         AR20110016091



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