PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            15 June 2000
	DOCKET NUMBER:   AR2000039014

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Orville W. Troesch, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Margaret V. Thompson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that her Voluntary Separation Incentive (VSI) payments for 1998 and 1999 be paid retroactively; that her records be corrected so as not to deprive her of future VSI payments.

3.  The applicant states, in effect, that she does not know why her VSI payments stopped and she was never contacted in regard to her losing eligibility for VSI.  She claims that when she contacted officials to question why her VSI payments stopped she was given conflicting reasons.  She indicates that she believed that her transfer to the Retired Reserve was based on her medical condition and limitations.  She has a disability rating from the VA based on her having had a liver transplant, which has also made her ineligible for reenlistment.  Her medical condition makes her unable to meet the physical fitness and weight standards of the USAR.  The applicant has provided the enclosed Retired Reserve Certificate, a VSI Earnings Statement, and an expanded statement in support of her application. 

4.  The applicant’s military records show that she served on active duty for 
19 years, 1 month, and 7 days.  She was honorably separated on 1 August 1992, in the rank of sergeant first class/E-7 (SFC), and transferred to the USAR Control Group (Reinf), St. Louis, Missouri as a member of the Individual Ready Reserve (IRR).  On 25 July 1992, she completed a DD Form 4 (Enlistment Contract), which committed her to an enlistment in the USAR for 3 years following her release from active duty.

5.  The record contains a DD Form 214 (Certificate of Release or Discharge From Active Duty) issued to the applicant on her separation.  This document shows that she was honorably separated, under the provisions of paragraph 
16-8 Army Regulation 635-120, by reason of the Voluntary Early Transition Program (VSI). 

6.  The DD Form 214 also shows that she was authorized VSI payments for 
38 years and while this document did not indicate a VSI amount, the applicant submitted a VSI Earnings Statement that verifies her authorized annual VSI payment is $21,522.30.  It also indicates that the final annual payment date is 
1 August 2030.

7.  On 1 August 1992, the day of her separation from active duty, the applicant was transferred to the IRR, in order to satisfy the Ready Reserve service requirements of the VSI program.  On 19 June 1996, Orders Number 
C-06-632063 was published by ARPERSCOM, which released the applicant from assignment to the USAR Control Group (Reinf) and transferred her to the Retired Reserve, effective 19 June 1995.  

8.  When the applicant did not receive her VSI payment for 1998 she contacted ARPERSCOM to determine why her VSI payments had been stopped without her ever being counseled or advised of the action.  She was informed that she was ineligible to receive further VSI payments because she had failed to reenlist in the IRR, which resulted in a requirement to transfer her to the Retired Reserve. She was advised that her only option was to apply to this Board and request a backdated enlistment in the IRR to regain her VSI entitlement. 

9.  The applicant informed ARPERSCOM that she would not be eligible for reenlistment because she received a liver transplant and would be unable to meet the physical or weight standards.  There were no medical records available to the Board for review either military or from the VA.  However, the VSI Earnings Statement submitted by the applicant does verify that almost half of her 1997 annual VSI payment was provided as disability compensation.  This payment was for a period that began 1996 and verifies that she does in fact have a disability rating granted by the VA. 

10.  Army policy and Department of Defense Military Pay and Allowances Entitlements Manual (DoDPM), based on Public Law 102-190, 5 December 1991, as amended, prescribes the qualifications for entitlement to readjustment benefits for certain voluntary separated members.  The VSI was one of the monetary benefits associated with this incentive program.  The voluntary incentive program was designed to support the Army’s drawdown.  

11.  Headquarters, Department of the Army message 281802Z 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.  VSI annual payments will 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.  

CONCLUSIONS:

1.  The evidence shows that the applicant, when she discovered that her transfer to the Retired Reserve impacted her receipt of VSI payments, attempted to resolve the situation through ARPERSCOM.  It is also clear that she had not been advised that this action would cancel her entitlement to VSI payments, prior to her transfer to the Retired Reserve.  

2.  In the opinion of the Board, it unreasonable to believe that an eligible individual would intentionally fail to take whatever action was necessary to prevent a voluntary transfer to Retired Reserve, knowing that such an action would suspend their annual VSI payments.  Therefore, the Board concludes that it is highly unlikely that the applicant’s transfer to the Retired Reserve was accomplished with her knowledge and full understanding of its effects on her VSI entitlement.  

3.  The applicant’s record confirms that she served honorably on active duty for over 19 years and was entitled to the VSI payments for 38 years upon her separation from active duty in 1992.  It would be unjust to now uphold an action that was taken without her knowledge and full understanding of the consequences.  An action that ultimately affected her eligibility to continue to receive her earned VSI payments.

4.  Based on the evidence there are two ways that the applicant could continue to be eligible for her VSI payments.  The first would be to void her discharge from the USAR Control Group and transfer to the Retired Reserve, and allow her to retroactively reenlist in the USAR.  The second would be to change the basis for her 19 June 1996 transfer to the Retired Reserve, from completion of necessary service, to a medically disqualifying limitations.

5.  While there were no medical records available for review, given the applicant has verified that she has a disability rating from the VA, the Board is inclined to believe her statement that her medical condition renders her ineligible for further USAR service because she would be unable to meet the physical demands of military service.  As such, it appears appropriate to base her 19 June 1996 transfer to the Retired Reserve on medical limitations that render her ineligible for further service, which will reinstate her eligibility to receive VSI payments. 

6.  The Board concludes, in view of the circumstances, and in the interest of justice and equity, that it would be appropriate to show that the applicant’s transfer to the Ready Reserve, on 18 June 1998, was due to no fault of her own and was based on disqualifying medical problems.  In addition, VSI payments should be resumed and any annual VSI payments, which were lost as a result of the applicant’s transfer to the Retired Reserve, should be paid retroactively.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the reason the individual concerned was transferred to the Retired Reserve, on 19 June 1996, was medical limitations that rendered her ineligible for continued service.  

2.  That the entitlement of the individual concerned to VSI payments be restored and that she be provided retroactive payment of any lost VSI payments that resulted from her transfer to the Retired Reserve. 

BOARD VOTE:  

____kan _  __mvt___  __owt___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Orville W. Troesch, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2000039014	
SUFFIX		
RECON		
DATE BOARDED	2000/06/15	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  291	128.0800	
2.		
3.		
4.		
5.		
6.