IN THE CASE OF:	  

		BOARD DATE:	    5 December 2013

		DOCKET NUMBER:  AR20130003407 


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 VSI (Voluntary Separation Incentive) payments and continued payment of such benefits by either:

	a.  amending his retirement orders to show he was retired "for medical reasons" or

	b.  making a determination that he fulfilled the VSI requirements and should receive all of the VSI payments to which he is entitled.

2.  The applicant states:

* he qualified for and accepted early release from active duty under the VSI Program in 1994
* he continuously maintained qualification for VSI payments while serving in the U.S. Army Reserve (USAR) until he was promoted to major and out of a job
* in order to maintain his VSI eligibility, he enlisted in the Pennsylvania Army National Guard (PAARNG) and temporarily reverted from major to chief warrant officer two
* on 19 May 2001 he sustained a back injury while completing an Army Physical Fitness Test (APFT) during a drill weekend
* his flight status was temporarily suspended while he aggressively pursued one medical treatment after another with hopes of having it restored
* 
despite maintaining continuous medical treatments and undergoing four surgeries, the degradation of his injury resulted in permanent termination of his flight status on 28 June 2004
* his commander did not document his injury correctly because he had never had a serious injury before and it was presumed he would recover
* his command was trying to force him out of the unit as soon as possible and made a point of mentioning his deteriorating condition in two OERs
* he was issued his "20-Year Letter" during drill weekend in July 2004
* his unit forced him to retire because he had encumbered a pilot's position in a grounded status for 3 years and 2 months
* he served his last drill weekend with the PAARNG in October 2004
* his retirement orders were published in December 2005, 14 months after his final drill date, and omitted that he was retiring for medical reasons
* on 9 January 2006, he had his fourth back surgery
* after 6 months on short-term disability with his employer he was unable to return to work and forced to rely on Social Security disability
* he has had numerous doctor visits, testing procedures, steroid injections, physical therapy sessions, chiropractic visits, and surgeries

3.  The applicant states he discovered the error on or about 25 July 2006 when he contacted the VSI Department to change his bank account information.  They advised that the omission of a statement such as "retired for medical reasons" would stop all of his future VSI payments.

4.  The applicant also states his medical condition has been documented in many ways and all he needs is for the following three words to be added to his retirement orders "FOR MEDICAL REASONS."  This will allow the VSI department to pay him the payments he was promised and earned.  He fulfilled his requirements for VSI; therefore, the Army should fulfill their requirements and pay him all of his entitlements.  If it is not possible to change his orders because he did not take an exit physical with the Army, the Board can make a determination that he has met his VSI requirements and, therefore, should receive all of the payments to which he is entitled.

5.  The applicant states that ever since his VSI payments were terminated in 2006 he has attempted to resolve this matter through his unit, his battalion, Fort Indiantown Gap, and an unspecified agency located in St. Louis, MO.  More recently, he has sought relief from both the State of Pennsylvania and the National Guard Bureau (NGB).  The Adjutant General of the PAARNG sent him a letter, but the NGB would not respond in writing.  After being transferred to seven different NGB personnel, he finally spoke to Lieutenant Colonel (LTC) M who told him they would not review his packet and would not respond to him in writing on 

this issue.  LTC M said the NGB would respond to the Army Board for Correction of Military Records (ABCMR), but not to him.  He concludes that this error is costing him a lot of money and has caused him undue financial hardship.  His efforts to resolve this problem have been further complicated by his medical condition, family problems, and being released from his civilian job as a result of his back injury.

6.  The applicant provides:

* a previously-submitted application to the ABCMR which was administratively closed due to failure to exhaust administrative remedies
* a self-authored "Summary of Facts"
* a self-authored "History of [applicant's name] Back Injury"
* his bank account information
* a Military Personnel (MILPER) message 
* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* six personnel orders
* a DA Form 705 (Army Physical Fitness Test Scorecard)
* two DA Forms 4186 (Medical Recommendation for Flying Duty)
* two DA Forms 67-9 (Officer Evaluation Report (OER))
* his "20-Year 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 was born on 22 May 1963.  Upon completion of the Reserve Officers' Training Corps program he was commissioned as a second lieutenant in the Field Artillery Branch of the USAR on 12 January 1984 and assigned to a Troop Program Unit (TPU).

3.  On 25 January 1986, the applicant was ordered to active duty for the completion of his active duty service obligation.

4.  In 1990, the applicant completed flight training and he was transferred to the Aviation Branch.

5.  On 4 February 1994, the applicant's request to be released from active duty (REFRAD) under the provisions of the Fiscal Year 1994 Army Officer VSI Program (VSIP) as prescribed in MILPER Message 93-267, dated 30 September 1993, was approved with an effective date of 1 August 1994.  The approval message emphasized the fact that the applicant would incur a service obligation in addition to any current statutory military service obligation in the Individual Ready Reserve (IRR) and that failure to agree to the additional service obligation would terminate the contract.

6.  Orders 048-00466, issued by Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, KY, dated 17 February 1994, show he was reassigned to the U.S. Army Transition Point for transition processing with a reporting date of 29 July 1994 and a REFRAD date of 1 August 1994.  After processing, he was to be REFRAD, not by reason of physical disability, and assigned to the USAR Control Group (Reinforcement) on the date immediately following his release.  These orders also show the following pertinent information:

* he was approved for payment of VSI
* Soldiers who receive VSI and subsequently qualify for retired or retainer pay shall have deducted an amount equal to the total amount of VSI 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 received

7.  His DD Form 214 shows he was honorably REFRAD on 1 August 1994 after completing 8 years, 6 months, and 7 days of active service.  Upon separation, he was transferred to the USAR Control Group (Reinforcement).  He was separated under the provisions of Army Regulation 635-100 (Personnel Separations - Officer Personnel), chapter 3.  His Separation Program Designator (SPD) code was "MCA."  The narrative reason for his separation was "EARLY RELEASE PROGRAM - VOLUNTARY SEPARATION INCENTIVE."  He received an initial VSI payment of $10,598.12 on 1 August 1994.

8.  Orders 97-168-003, issued by Headquarters, USAR Command, Atlanta, GA, dated 17 June 1997, show he was reassigned from a TPU to the USAR Control Group (Reinforcement) effective 3 May 1997.  The reason for this reassignment was his promotion to major that was characterized as a "Promotion to Grade Exceeding Vacancy."

9.  On 14 August 1997, the applicant was released from the USAR Control Group (Reinforcement) for the purpose of accepting an appointment in the PAARNG.  On the same date, he was appointed as a chief warrant officer two in the PAARNG.  He was subsequently authorized to perform aviation service "Flying Duty" effective 16 September 1997.

10.  The applicant provides a DA Form 705 that shows he passed an APFT on 19 May 2001.

11.  The applicant provides a DA Form 4186, dated 8 June 2001, that shows he was recommended for temporary medical suspension from performing flying duty for an estimated duration of 2 to 3 months for no specified reason.  During the period of suspension the applicant was only authorized to perform duty not involving flight (DNIF).

12.  The applicant's DA Form 67-9 for the period 15 March 2001 through 14 March 2002 shows he did not take an APFT during the rated period because he had a medical profile and the rater indicated he did not maintain the appropriate level of physical fitness.  The rater indicated the applicant's performance had been unsatisfactory and recommended the applicant not be promoted.  His rater also stated "During the rated period [applicant] has unsuccessfully attempted to attain flight status.  Additionally [applicant] has not taken or passed an Army APFT since transferring to this unit.  [Applicant] suffers from continuous back pain and is currently on several types of medication for his pain.  [Applicant] has had this back problem for several years prior to transferring to [his unit].  [Applicant] is not proactive in any of his treatment for his back.  This condition prohibits him from being placed on flight status.  [Applicant] is not only non-deployable, he cannot attend flight training for transition into any modernized aircraft.  Additionally this medical problem will prohibit him from attending the aviation safety course at Fort Rucker, AL.  Therefore, [applicant] will never be MOS-Q [military occupational specialty qualified]...[Applicant] has consulted the flight surgeon and this condition does not appear to be improving.  The flight surgeon advised this rater that this condition would only deteriorate."  The senior rater indicated the applicant was "fully qualified" and stated "[Applicant] continues to be an asset to the unit.  His input and direction help further unit effectiveness.  
Although not currently on flight status [applicant] has potential to continue his aviation service in the future.  Schedule for appropriate schooling and promote with peers."

13.  The applicant provides a DD Form 689 (Individual Sick Slip) that shows he went on sick call on 17 August 2002 to receive treatment for back pain that started in May 2001.  As a result, the examining medical officer recommended the applicant not participate in Army physical fitness training for a period of 90 days while he underwent treatment.

14.  The applicant's DA Form 67-9 for the period 15 March 2002 through 14 March 2003 shows he did not take an APFT during the rated period because he had a medical profile.  The rater indicated the applicant's performance had been satisfactory and recommended the applicant be promoted when all requirements were met and he returned to flight status.  His rater also stated "During the rated period [applicant] was not able to perform flight duties due to medical grounding.  He was not able to perform an Army APFT due to medical conditions.  [Applicant] suffers from continuous back pain and is currently on several types of medication for his pain.  He is seeking treatment for his back problems.  [Applicant] is not deployable and cannot attend flight training for an aircraft transition until he recovers from his medical condition.  [Applicant] does a good job in assisting the unit in completing administrative requirements.  He possesses good potential if he can overcome his medical setbacks."  The senior rater indicated the applicant was "fully qualified" and stated "[Applicant] is an asset to the unit.  His performance of additional duties supports the unit's readiness goals.  He is an intelligent and capable Soldier.  His potential will be achieved once he returns to flight status duties.  Promote when fully qualified."

15.  The applicant provides a DA Form 4186, dated 28 June 2004, that shows he was recommended for permanent medical suspension from performing flying duty retroactive to 25 June 2002.  During the period of suspension the applicant was only authorized to perform DNIF.

16.  On 8 July 2004, the Adjutant General's Office, PAARNG, sent the applicant a letter notifying him that he had completed the required years of service to be eligible for retired pay upon application at age 60 (20-Year Letter).

17.  On 31 October 2004, he was honorably separated from the USAR and transferred to the Retired Reserve.

18.  His record is void of any medical evidence showing he was diagnosed with any condition or injury that rendered him unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.

19.  There is no evidence in the available record that shows the applicant was referred to the Army Physical Disability Evaluation System (PDES) for consideration by either a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB) prior to his retirement.

20.  There is no indication he was separated for medical conditions or the nature of his medical conditions at the time of his retirement.

21.  The applicant provides a letter rendered by the Chief, Medical Branch PAARNG, dated 21 February 2012.  He informed the applicant that they could not make correction to either his NGB Form 22 or DD Form 214 citing medical retirement due to his lack of completing the medical evaluation board process prior to separation from the PAARNG.  In addition, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1d provides that a lack of special skills in demand, inability to meet physical standards established for specialized duty such as flying or transfer between components or branches which the Army, does not in itself establish eligibility for disability separation or retirement.

22.  To assist in maximizing voluntary separation during the drawdown period of military forces, the National Defense Authorization Act (NDAA) for Fiscal Year 1994 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.  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.

23.  Title 10, U.S. Code, sections 1174 and 1175, state a member who has received separation pays, SSB or VSI, and later qualifies for retired pay, "shall have deducted from retired pay so much of such pay as is based on the same service."  

24.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness 

because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to a PEB.  

25.  Army Regulation 635-40, paragraph 4-19 states when a Soldier has a rating of less than 30 percent and has at least 20 qualifying years for retirement for non-regular service, the Soldier has the option of accepting discharge with disability severance pay and forfeiting retirement for non-regular service; or may request transfer to the Retired Reserve and receive retired pay at age 60.

26.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

27.  Title 10, U.S. Code, section 1209, states any member of the armed forces who has at least 20 years of service computed under section 12732 of this title, and who would be qualified for retirement under this chapter but for the fact his disability is less than 30 percent under the standard schedule of rating disabilities may elect, instead of being separated under this chapter, to be transferred to the inactive status list under section 12735 of this title and, if otherwise eligible, to receive retired pay under section 12739 of this title upon becoming 60 years of age.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reinstatement of his VSI payments and continued payment of such benefits by either:

	a.  amending his retirement orders to show he was retired "for medical reasons" or

	b.  making a determination that he fulfilled the VSI requirements and should receive all of the VSI payments to which he is entitled.

2.  The applicant's contentions were carefully considered.

	a.  Records show the applicant requested and he was granted voluntary REFRAD under the provisions of the Fiscal Year 1994 Army Officer VSIP as prescribed in MILPER Message 93-267.  His VSI approval message and REFRAD orders both clearly stipulated that Soldiers who receive VSI and subsequently qualify for retired or retainer pay shall have deducted an amount equal to the total amount of VSI pay not previously recouped and 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 received.

	b.  He entered the USAR Control Group (Reinforcement) and continued to serve there until he was promoted out of an authorized position.

	c.  In order to continue to serve and remain eligible for VSI payments he accepted an appointment as a warrant officer in the PAARNG.

	d.  Evidence indicates he sustained a back injury in May 2001 that precluded him from performing flight duties.  However, evidence also shows he was able to perform numerous other duties and he was considered to be an asset to his unit.

	e.  He was issued his 20-Year Letter on 8 July 2004 and he was transferred to the Retired Reserve on 31 October 2004.

3.  There is no evidence of record that shows the applicant was referred to the PDES or found medically unfit for continued service.  Therefore, there is no basis for amending any of his separation documents to show he was retired "for medical reasons."

4.  Transfer to the Retired Reserve requires a voluntary request.  There is no evidence to show the applicant was forced to transfer to the Retired Reserve rather than request transfer to the USAR Control Group (Reinforcement) where he could have continued to maintain his active status at least for a time.

5.  The available evidence shows the applicant was properly and equitably retired in accordance with the regulations in effect at the time.  There is no indication of 
procedural errors that would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the retirement process.

6.  The VSI Program requires continued service in a Reserve Component during the entire period of eligibility for VSI.  Therefore, it was appropriate to terminate his entitlement to VSI payments at the time of his retirement.  

7.  In view of the foregoing, there is no basis for granting the applicant's request.
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)                                         AR20130003407



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ABCMR Record of Proceedings (cont)                                         AR20130003407



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