PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  30 July 2002
	DOCKET NUMBER:  AR2002066567

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas Lanyi		Member	
	Ms. Karen A. Heinz		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 he be reinstated in the Individual Ready Reserve (IRR), from 29 August 1995 to the present, as a Voluntary Separation Incentive (VSI) recipient and that he receive VSI payments from 29 August 1995 to the present.

3.  The applicant states, in effect, that he thought a correction to the record in 2001 to show that he was separated from the Regular Army under the VSI program would also result in him receiving annual VSI payments from 1996 to the present.

4.  The applicant’s military records were corrected by this Board on 19 July 2001, to show that the applicant was separated from the Regular Army on 24 August 1992, under the VSI program for which he was then approved instead of under the Special Separation Benefit (SSB) program as was erroneously entered on his DD Form 214 (Certificate of Discharge or Release from Active Duty).  He received a DD Form 215 (Correction to a DD Form 214), issued 16 November 2001, to that effect.  He was honorably discharged as a sergeant, pay grade E-5, with 9 years, 9 months, and 28 days active service.

5.  Effective 25 August 1992, the day after he was separated from the Regular Army, he enlisted in the IRR for a 3 year term of service.  He received VSI payments for each of the three years which were applied to his debt to repay the erroneous SSB payment he received at separation from the Regular Army.  On 29 August 1995, the applicant was discharged from the IRR and the USAR at the expiration of his term of service.  There is no evidence that he requested reenlistment in the IRR.

6.  Title 10, U. S. Code, section 1175, authorizes VSI and provides that recipients are paid an annual annuity payment equal to 2.5 percent of the soldier’s annual basic pay at separation multiplied by their number of years of service and paid for twice the number of years the soldier had served at the time of separation.  The Department of Defense Financial Management Regulation, Volume 7A, chapter 35, paragraph 350801, states that soldiers receiving annual VSI payments are required to maintain a Reserve affiliation during the entire time that they are in receipt of annual payments.  A soldier with Reserve affiliation is one who is in an active Reserve status as a member of a Troop Program Unit (TPU), the Active Guard and Reserve (AGR), the Individual Mobilization Augmentee Program (IMA), or the IRR.  A soldier can lose affiliation status by failing to maintain a valid enlistment contract in the Army Reserve, failing to maintain a valid address, failing to respond to official correspondence, failing to maintain a current physical examination, receiving an involuntary separation action that is considered to be the soldier’s fault; or, as an officer, resigning a commission.  Reenlistment to maintain a valid enlistment contract is governed by Army Regulation 601-210 which requires, in pertinent part, that the soldier meet specified age and maximum age for the grade held.
7.  When a soldier loses Reserve affiliation, VSI payments cease.  VSI recipients may leave an active Reserve status as a result of involuntary separation actions not considered the soldier's fault and continue to receive VSI payments.  VSI recipients will normally be transferred to the Retired Reserve.  The following are situations when the soldier may continue to receive payments: passed over two times for promotion (officers), not medically qualified for retention, reached Mandatory Removal Date (MRD), reached the maximum age for the grade held, or qualified for age 60 Reserve retirement.  The Defense Finance and Accounting Service - Cleveland Center makes annual payments after verification that the soldier has a proper Reserve status.  The Army Reserve Personnel Command (AR-PERSCOM) Transition and Separations Branch confirms a soldier’s Reserve status.

CONCLUSIONS:

1.  The applicant was separated from the Regular Army under the VSI program which authorized him to receive VSI payments for twice the number of years that he served on active duty.  A condition of receiving the VSI payments is to maintain a Reserve affiliation, which for an enlisted soldier, is maintaining a valid enlistment contract in the USAR.  The applicant failed to do this and there is no evidence that he requested reenlistment in the IRR in 1995 when his IRR enlistment expired.  As such, he is not entitled to VSI payments or retroactive pay from 30 August 1995, the date of his discharge from the USAR, to the date of his pending reenlistment recommended in paragraph 2 below.

2.  As a matter of justice, the applicant should be allowed to currently enlist in the IRR and receive VSI payments as long as he maintains Reserve affiliation.  Enlistment in the IRR for prior service members is governed by Army Regulation 601-210.  The enlistment is accomplished by a recruiter.  The applicant should be enlisted at the grade of E-5.  The requirements for age and maximum age for the grade held should be waived by this Board for this enlistment.  The applicant should be provided a IRR enlistment packet by AR-PERSCOM and given a sufficient suspense to effect an enlistment in the IRR, including a physical examination under Army Regulation (AR) 40-501 as required.  Failure to do so will result in loss of any further VSI benefits.

3.  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 for the individual concerned, as an exception to policy, by: 

	a.  AR-PERSCOM enlisting him in the IRR in pay grade E-5;

b.  granting him enlistment waivers for age and maximum age for the grade held if required; 

c.  providing him with a physical examination as required and a waiver if required for enlistment, and transfer to the Retired Reserve after enlistment if he is not medically qualified for retention; and

d.  reinstating him in the VSI program and providing him renewed VSI payments beginning upon the first anniversary of his new enlistment in the IRR.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__ao___  __tl____  ___kh___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Arthur A. Omartian____
		        CHAIRPERSON

INDEX

CASE ID	AR2002066567	
SUFFIX		
RECON		
DATE BOARDED	20020730	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19950829	
DISCHARGE AUTHORITY	AR 135-178	
DISCHARGE REASON	ETS	
BOARD DECISION	Grant Part	
REVIEW AUTHORITY		
ISSUES         1.	100 – Administrative Matters	
2.		
3.		
4.		
5.		
6.