IN THE CASE OF:	  

		BOARD DATE:	    24 July 2012

		DOCKET NUMBER:  AR20120001442 


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 payment of Voluntary Separation Incentive (VSI) pay.

2.  The applicant states his Honorable Discharge Certificate from the U.S. Army Reserve (USAR) was sent to him on 2 October 2001 instead of a reenlistment reminder. 

3.  The applicant provides a certificate, orders, and a letter.

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's records show he enlisted in the Regular Army on 6 September 1978 and he held military occupational specialty 13B (Cannon Crewmember). 

3.  He was honorably discharged on 1 June 1992.  He completed 13 years, 8 months, and 26 days of creditable active service.

4.  The 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 was also authorized VSI payments for 27 years.

5.  On 2 June 1992, he executed a 3-year enlistment in the USAR.

6.  The applicant provides Orders Number D-05-545221, dated 30 May 1995, issued by the U.S. Army Reserve Personnel Center, wherein he was honorably discharged from the USAR, effective 30 May 1995.  His discharge orders state that his discharge certificate and discharge orders were being mailed to his last known address as of 7 June 1995.

7.  He also provides an Honorable Discharge Certificate that shows he was honorably discharged from the USAR on 2 October 2001.

8.  A review of his records shows he contacted the USAR on 3 June 2002, to inquire as to why he had not received his 1 June 2002 VSI payment.  He stated he thought his expiration of term of service (ETS) was November 2002 because in November 1996 he reenlisted for 6 years with a backdated enlistment date of 31 May 1995.  The reenlistment document is not available for review with this case.

9.  The applicant provides a letter from the Defense Finance and Accounting Service (DFAS), dated 22 March 2011, wherein they denied his request for payment of the VSI.  The DFAS official stated that his VSI agreement stated his pay would continue on the condition that he remained affiliated with a Reserve unit.  Their records showed his last payment was in 2001 and he was not being paid because there was no Reserve affiliation confirmation for him.

10.  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.  

11.  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).

12.  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.

13.  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

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received VSI payments through June 2001.  His initial enlistment in the USAR was for 3 years and his ETS was 30 May 1995.  It appears the applicant reenlisted in the USAR for 6 years in November 1996 which was backdated to reflect a reenlistment date of 31 May 1995.  As such, his new ETS would have been 30 May 2001.  

2.  There is no evidence in his records and he did not provide any evidence that shows he reenlisted in the USAR on or after 31 May 2001; therefore, his entitlement to VSI payments ended because he was no longer a member of the USAR.  In addition, it is the responsibility of the Soldier to maintain a valid enlistment contract; it is not a requirement for the USAR to send reenlistment reminders. 

3.  In view of the foregoing, he is not entitled to 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)                                         AR20120001442





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ABCMR Record of Proceedings (cont)                                         AR20120001442



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