BOARD DATE:	  9 July 2015

		DOCKET NUMBER:  AR20140011170 


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 that his Voluntary Separation Incentive (VSI) payments be reinstated.

2.  The applicant states that he was recalled back to active duty in 2004 and reported to Fort Jackson, South Carolina for mobilization processing in 2005.  He goes on to state that he was medically disqualified for his hearing and was given a P3 profile and discharged.  He continues by stating that for some reason his VSI payments stopped and he has since been informed that the payments should not have stopped because he was medically disqualified.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a printout of VSI information from the Defense Finance and Accounting Service (DFAS) website.

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 on 28 February 1974.  He completed his training as a field radio mechanic and remained on active duty through a series of reenlistments.  He was promoted to pay grade E-7 on 
14 June 1986.

3.  On 9 September 1992, he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 16-8 and the Fiscal Year 1992 Enlisted Voluntary Early Transition Program (VSI).  He had served 18 years, 6 months and 12 days of active service and was entitled to annual VSI payments of $11,127.20 for 36 years.  He was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).  On 17 May 2001, he reenlisted for a period of 6 years.

4.  The applicant was ordered to active duty for mobilization processing and reported to Fort Jackson, South Carolina on 27 March 2005 where he remained until 13 April 2005 when he was released from active duty (REFRAD) due to failure to meet mobilization standards and was transferred to the USAR Control Group (Reinforcement).

5.  On 1 September 2005, orders were published transferring the applicant to the USAR Control Group (Standby Reserve) due to his being medically disqualified.  

6.  On 21 August 2007, orders were published which discharged him from the USAR.

7.  However, on 3 March 2008, the Human Resources Command – St. Louis (HRC-STL) command surgeon issued the applicant a permanent physical profile (312311) for elevated glucose, elevated blood pressure and hearing loss and indicated that the applicant did not meet retention standards of Army Regulation 40-501 (Standard of Medical Fitness).

8.  In the processing of this case a staff advisory opinion was obtained from the U.S. Army Human Resources Command (HRC) which states that the applicant was provided an indefinite reenlistment contract which required his signature and return to the HRC-STL; however, it was never received.  Accordingly, his discharge was proper and he is no longer eligible for VSI payments.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.  

9.  The Voluntary Incentive Program was designed to support the Army’s drawdown.  Headquarters, Department of the Army (DA) Message 281802Z, dated in January 1992, clarified issues associated with the voluntary separation incentive 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 continues to serve in the Ready Reserve.  It also stipulated that VSI annual payments would be discontinued if the member is separated from the Ready Reserve unless the individual becomes ineligible to continue to serve due to medical or age limitations in which case the soldier will be transferred to the Standby Reserve or the Retired Reserve.  

DISCUSSION AND CONCLUSIONS:

1.  Although officials at the HRC indicate that the applicant failed to return the signed reenlistment contracts that were forwarded to him, the evidence of record clearly shows that he was issued a permanent profile and a determination was made by the command surgeon that he did not meet retention standards of 
AR 40-501.  

2.  Additionally, the applicant was ordered to active duty and was medically disqualified due to failure to meet mobilization standards.  He was REFRAD and was transferred to the Reinforcement Control Group where he remained until he was transferred to the USAR Control Group (Standby Reserve) due to his being medically disqualified.

3.  On 21 August 2007, orders were published discharging him from the USAR due to the expiration of his term of service (ETS).

4.  Although the HRC contends that a completed reenlistment contract was forwarded to the applicant for signature, the evidence of record suggests that he was ineligible to reenlist due to medical reasons because the HRC-STL Command Surgeon determined that he did not meet medical retention standards.

5.  Therefore, it appears that the applicant should have been transferred to the Retired Reserve instead of being discharged as he could not continue to serve due to medical reasons that were through no fault of his own. 

6.  His record confirms that he served honorably on active duty for 18+ years and that he was entitled to the VSI payments for 36 years upon his separation from active duty in 1992.  It appears unreasonable to believe that he or any other individual would voluntarily accept a discharge from the USAR knowing that such an action would suspend annual VSI payments.

7.  It also appears that it would be unjust to hold the applicant responsible for not signing a reenlistment contract, which technically he was not eligible to sign, which ultimately affected his eligibility to continue to receive his VSI payments, knowing that he likely made that decision without full knowledge of the consequences.

5.  In view of the circumstances and in the interest of justice his discharge from the USAR should be voided, he should instead be transferred to the Retired Reserve, and his VSI payments should be resumed without regard to the Barring Statute. 

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 voiding his discharge from the USAR and instead transferring him to the Retired Reserve and resuming his VSI payments without regard to the Barring Statute.





      _______ _   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)                                         AR20140011170





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ABCMR Record of Proceedings (cont)                                         AR20140011170



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