IN THE CASE OF:	  

		BOARD DATE:	  1 October 2015

		DOCKET NUMBER:  AR20140021490 


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 reconsideration of his request for reimbursement and reinstatement of Voluntary Separation Incentive (VSI) payments.

2.  The applicant defers to his counsel.

3.  The applicant provides no additional documents.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's request for reimbursement of VSI payments (that were withheld by the Defense Finance and Accounting Service (DFAS) in the amount of $35,480.00 during the period 1 June 2006 through 1 May 2007) and reinstatement of all subsequent VSI payments be reconsidered.

2.  Counsel states that the decision by the Army Board for Correction of Military Records (ABCMR) contains substantial legal and factual errors.

   a.  He states DFAS did not have authority to withhold VSI payments because the applicant's disability was from an injury that occurred in a period of service that was prior to the period of his voluntary separation.

   b.  The ABCMR Record of Proceedings (ROP) shows, "The applicant provides no additional documents with his application."  However, documents were provided by counsel (i.e., the applicant's discharge certificate, medical records, DFAS letter, and a Department of Veterans Affairs (VA) disability rating) that were not fully considered.

   c.  The ROP (Consideration of Evidence, paragraph 8) appears to show that the Board agrees with the applicant with regard to the applicability of Title 10, U.S. Code, section 1775 (10 USC 1775).  Specifically, that no deduction may be made from VSI payments for any disability compensation received because of an earlier period of active duty if the VSI is received because of discharge or release from a later period of active duty.

   d.  The Board was correct in understanding the applicant had a period of service between December 1976 and February 1979 and an additional period of service from November 1979 until May 1993.  During the first period he transferred from Infantry to Armor.  He then transferred to Ordnance, then back to Armor, and he finished his career as an Ordnance officer.

   e.  For the applicant to be entitled to full VSI, his back injuries (substantiated in the medical record and VA rating decision) would had to have occurred during the first period of service.  The Board conceded that he was an Armor officer during that period of service.  However, the Board ignored the two medical records that demonstrate the applicant was injured during his first period of service.  The injury was later aggravated during the second period of service.

   f.  The medical records from 1993 show the applicant was a 39 year old major and logistician, and that he had a history of multiple major tank incidents that caused arm and shoulder problems.  The record also shows the first injury was in 1978 and subsequent injuries were in 1982 and 1983.

   g.  The applicant received a 100% service-connected disability rating from the VA in August 2006.

   h.  Counsel concludes that, based on the above facts, the requested relief should be granted.

3.  Counsel provides a four-page brief explaining the applicant's position regarding the basis for his request for reconsideration (as summarized above), along with previously submitted documents, including a –

* DD Form 214 (Report of Separation from Active Duty), effective 
12 February 1979
* DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 31 May 1993
* Medical Consultation Report, undated
* Radiologic Examination Report, printed 12 February 1993
* DFAS letter, dated 10 March 2007
* VA letter, dated 29 May 2008

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130021424 on 11 September 2014.

2.  The applicant was born in January 1954.  He was appointed as an officer in the U.S. Army Reserve (USAR), in the grade of second lieutenant, on 
9 December 1976.  

3.  Headquarters, U.S. Army Third Reserve Officer Training Corps Region,
Fort Benning, GA, Orders 115-1-A-555, dated 22 December 1976, ordered the applicant to active duty on 13 February 1977 for a period of 2 years in basic branch Infantry.

   a.  A DA Form 1059 (Service School Academic Evaluation Report) shows the applicant did not complete the Infantry Officer Basic Course (OBC) and that he was dropped due to physical reasons, effective 29 May 1977.

   b.  U.S. Army Military Personnel Center, Alexandria, VA, letter, dated 19 May 1977, subject:  Branch Transfer, shows he was permanently transferred from Infantry to Army, effective 19 May 1977.

   c.  A DA Form 1059 shows he completed the Armor OBC at U.S. Army Armor School, Fort Knox, KY, on 31 August 1977.

4.  An AFZP-MD Form 8-53 (Medical History) was completed by the applicant based on a complaint due to pain or discomfort of teeth.

a. It shows in response to –

* Item 5 (When did you last consult a physician?), "September" 
For What:  "Annual Physical"
* Item 6 (Have you been hospitalized in the past 5 years?), "No"
* Item 8 (Remarks) is blank (no entries)

   b.  On 17 January 1979, the applicant and doctor placed their signatures on the document.


5.  A DD Form 214 shows the applicant entered active duty this period on
13 February 1977, was honorably released from active duty (REFRAD) on
12 February 1979 based on completion of required active service, and transferred to the USAR Control Group (Reinforcement).  He had completed
2 years of total active service this period and he had 2 months and 3 days of prior inactive service.

6.  Office of The Adjutant General, USAR Components Personnel and Administration Center, St. Louis, MO, Orders A-11-47736, dated 20 November 1979, ordered the applicant to active duty on 20 November 1979 for a period of 
3 years in basic branch Ordnance.  He was to attend the Armament OBC at Aberdeen Proving Ground (APG), MD, from 20 November 1979 to 25 January 1980.

7.  The applicant was promoted to the rank of major (O-4) on 1 October 1989.

8.  ABCMR Docket Number AC93-05283, dated 10 February 1993, shows the applicant (through counsel) requested his selection for involuntary separation by the 1992 reduction-in-force board be rescinded and, in pertinent part, voluntary separation with entitlement to receive the VSI or the special separation benefit (SSB).  The Board directed, in pertinent part, the applicant's records be corrected to show he requested and received approval for voluntary separation for personal reasons with entitlement to the VSI/SSB, effective on a date to be determined.

9.  U.S. Army APG Support Activity, APG, MD, Orders 91-40, dated 11 May 1993, released the applicant from active duty on 31 May 1993.  In pertinent part, the additional instructions of the orders show –

* Soldier entitled to full separation pay in accordance with 10 USC 1174.  Soldier approved for VSI payment.   Total active duty is 15 years, 
6 months, and 13 days.
* Soldiers who receive VSI based on service in the Armed Forces, and who subsequently qualify under 10 USC or 14 USC 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.

10.  A DD Form 214 shows the applicant was honorably REFRAD on 31 May 1993 and transferred to the USAR Control Group (Reinforcement) under the provisions of Army Regulation 635-100 (Personnel Separations – Officer Personnel), Chapter 3, Section XVI, and the Early Release Program – VSI.
Item 18 (Remarks) shows, in pertinent part, "VSI Payment, $17,546.31 annually for 31 years."

11.  U.S. Total Army Personnel Command, St. Louis, MO, memorandum, dated 
6 January 1997, subject:  Notification of Promotion Status, shows the applicant was notified that he was considered, but not selected for promotion by the board.  In pertinent part, it shows that as a result of this second nonselection, he would be discharged, unless he was eligible for and requested transfer to the Retired Reserve.

12.  A review of the applicant's military personnel records failed to reveal he was notified that his eligibility for retired pay had been established upon attaining age 60 (a 20-Year letter).  There is also no evidence that shows he requested transfer to the Retired Reserve.

13.  An AHRC Form 249-E (Chronological Statement of Retirement Points) shows the applicant was credited with 6,095 total points and with 16 years,
5 months, and 23 days of qualifying service for retirement.  It also shows he was transferred to the Retired Reserve on 17 July 1998.

14.  A review of the applicant's records in the U.S. Army Human Resources Command, Integrated Web System, revealed a note that shows, "Subject: previous notes and entries.  Individual is not eligible for transfer out of the Retired Reserve.  He is there as a 2xPO [two-time pass over] for promotion, and as a VSI recipient.  Were he not a VSI recipient, he would have been discharged.  The only way he can come out of the Retired Reserve is as an enlisted [Soldier] and even that is not likely."

15.  In consideration of the request for reconsideration the following previously submitted documents are summarized and reconsidered.

   a.  The reverse side of what appears to be a Medical Consultation Report, undated, with a facsimile date of 22 May 2009 along with the applicant's last name in the header area.  The contents of the handwritten document does not otherwise specifically identify the applicant.

    	(1)  It shows a chief complaint of left arm/leg pain.  It also shows "39 year old WM [white male] active duty O-4 (Logistician), history of 2 major MVA [motor vehicle accidents] (tank incidents) – broken left leg and back/left arm."

    	(2)  It also appears to show:  "Over past 6 months, [indecipherable], nausea, diarrhea, and dizziness?  Notes decreased strength in left arm/shoulder, but hand is OK.  However, severe pain in left arm/shoulder.  Sharp continuous pain that radiates down to lateral mid forearm (approximately C5).  Also notes tingling.  Gotten progressively worse.  Over past 3 years, he has noted episodes of "cattle prod" electrical sensation in mid back (approximately C8 vertebral level) with electrical sensation down into left thigh."
 
   	(3)  It further shows:

* Hypertension:  (1978, Infantry and Armor officer)
* Tank MVA (1982, 1983)

   b.  Walter Reed Army Medical Center, Radiologic Examination Report, Magnetic Resonance Imaging (MRI), Exam Date 11 February 1993, requested by Doctor G___ S. L___, that shows, "Reason for Order:  39 year old WF 
[sic, white female] active duty O-4 Armor officer.  Has had 3 separate tank related injuries resulting in severe radicular type pain in left arm (C5) and left leg (L2, L5 distributions) and mid thoracic electrical pain (vertical level).  Study needed to evaluate.  Order Comment:  Within 2 weeks please."

   c.  DFAS, Retired and Annuity Pay, Direct Remittance (VSI) Processing Section, letter, dated 10 March 2007, pertaining to the applicant's VSI that shows he is entitled to receive VSI payments of $17,546.31 until 31 May 2023.  It also shows, in pertinent part, "However, pursuant to Public Law 10 USC 1175, a service member who elects to receive VSI will have reduced from each installment (before taxes), the amount of disability compensation concurrently received.  Accordingly, the amount of $35,468.00 representing the amount of compensation received effective from 1 June 2006 through 1 May 2007 exceeds your VSI installment therefore; no payment will be issued to you this year."

   d.  VA Regional Office, St. Petersburg, FL, letter, dated 29 May 2008, addressed to the applicant that shows the Veterans Service Center Manager wrote, "This is to certify that the records of the above named honorably discharged veteran show that he/she is permanently and totally disabled due to active connected disability or disabilities."

16.  10 USC 1175 (VSI) provides for a financial incentive to members of the armed forces for voluntary appointment, enlistment, or transfer to a reserve component.  Paragraph (e) (4) provides that a member who is receiving VSI payments shall not be deprived of this incentive by reason of entitlement to disability compensation under the laws administered by the VA, but there shall be deducted from VSI payments an amount equal to the amount of any such disability compensation concurrently received.  Notwithstanding the preceding sentence, no deduction may be made from VSI payments for any disability compensation received because of an earlier period of active duty if the VSI is received because of discharge or release from a later period of active duty. 

DISCUSSION AND CONCLUSIONS:

1.  The request for reconsideration, along with the supporting documents, has been carefully considered.

2.  ABCMR Docket Number AR20130021424, dated 11 September 2014, denied the applicant's request because he did not provide sufficient evidence to show that his VA disability compensation is based on injuries incurred during a previous period of service.  The findings also show, "If the applicant can provide such evidence, he is advised to provide such evidence to DFAS." 

3.  On behalf of the applicant, counsel resubmitted the same documents that were previously considered by the ABCMR with no indication that any evidence had been provided to DFAS for consideration.

4.  Nonetheless, the evidence that was resubmitted was carefully reviewed and reconsidered in conjunction with the applicant's military service records.

   a.  The applicant completed a medical history statement on 17 January 1979 and he did not make note any significant medical condition or injury.

   b.  The DD Form 214 issued to the applicant to document his initial period of active duty shows he was REFRAD on 12 February 1979 based on completion of required active service.  There is no evidence of record that shows he was REFRAD based on an unfitting medical condition that entitled him to disability compensation.

   c.  The applicant provides no contemporaneous medical records from the period of service under review.

   d.  The document provided that appears to be the reverse side of a Medical Consultation Report is undated and (notwithstanding the facsimile header information) it does not identify the applicant by any personal identifying information.  However, based on the evidence of record, it may be concluded that, if it pertains to the applicant, it was prepared circa 1993 as it refers to a 
39 year old male.  Thus, in that case, it would appear to document the applicant's hypertension in 1978 (during his initial period of active duty) and his involvement in two tank accidents/incidents that occurred in 1982 and 1983 (during his second period of active duty).

   e.  The Radiologic Examination Report, dated 11 February 1993, prepared for the purpose of scheduling the applicant for an MRI within 2 weeks (emphasis added), refers to three tank-related injuries (vice two), but does not specify any dates.  (It is noted that the results of the MRI exam were not provided.)

   f.  The VA letter offers a statement that certifies the applicant "is permanently and totally disabled due to active [duty] connected disability or disabilities." However, it does not provide any other information or details (e.g., diagnosed medical condition(s), date(s) of injuries/onset of medical condition(s), percentage of disability rating(s), etc.).
   
   g.  Thus, once again, the documents provided fail to offer credible evidence that clearly demonstrates the applicant is receiving VA disability compensation because of an earlier period of active duty.

5.  Therefore, in view of all of the foregoing, it is concluded that there is an insufficient evidentiary basis to grant 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 to amend the decision of the ABCMR set forth in Docket Number AR20130021424, dated 11 September 2014.




      _______ _   _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)                                         AR20140021490



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ABCMR Record of Proceedings (cont)                                         AR20140021490



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