RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            06 MAY 2004                    
	DOCKET NUMBER:   AR2003097442

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald J. Weaver		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  In effect, the applicant requests that his record be corrected to show that he reenlisted in the Army Reserve on 5 August 1995 in order for him to maintain his Reserve affiliation and continue to receive VSI (voluntary separation incentive) payments.

2.  The applicant states that he reenlisted in October 1995; however, since that time all copies of his reenlistment contract have been lost.  Army Regulation 140-111, paragraph 2-1a(2) requires personal data be verified from official military personnel records; however, because his reenlistment contract cannot be located, the retention office cannot determine the date to enter in item 5 of his DD Form 4. 

3.  The applicant provides a copy of his last available DD Form 4/1-E (Enlistment/Reenlistment Document), a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a copy of an order discharging him from the Army Reserve.

CONSIDERATION OF EVIDENCE: 

1.  The applicant was inducted into the Army on 12 July 1966, served in Vietnam where he was awarded the Army Commendation Medal with "V" device and the Purple Heart.  He was released from active duty with an honorable characterization of service on 11 July 1968 and transferred to the Army Reserve Control Group (Annual Training).

2.  He enlisted in the Army Reserve for six years on 27 October 1979; however, a later enlistment contract shows that he enlisted for six years on 17 March 1980 in the delayed entry program.  He was discharged from the delayed entry program upon his enlistment in the Regular Army for three years on 29 April 1980.  

3.  The applicant continued his service in the Regular Army until his discharge on 4 August 1992 under the provisions of the FY92 enlisted early transition program. His DD Form 214 shows that he was transferred to the Army Reserve Control Group (Reinforcement) and that he received a VSI payment of $7605.22, an amount which would continue annually for 28 years.

4.  The applicant enlisted in the Army Reserve for three years on 5 August 1992.  
5.  On 25 September 2001 the Army Reserve Personnel Command at St. Louis published orders discharging the applicant from the Army Reserve.

6.  MILPER message 92-85, dated 7 January 1992, provides implementing instructions for the enlisted voluntary incentive programs in support of Army drawdown.  Two incentives were offered, the VSI and the SSB.  Each incentive required affiliation with the Ready Reserve.  A Soldier approved for separation under the VSI program is paid an amount equal to 2.5 percent of his monthly basic pay on the date transferred to the Ready Reserve, multiplied by twelve and multiplied again by his years of service.  A Soldier will be paid in annual installments commencing on his departure date from active duty, and on each anniversary date thereafter for twice the number of years of 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, except under certain conditions, i.e., the Soldier’s death.
   
7.  Army Regulation 140-111 prescribes policies, responsibilities, and procedures for the Army Reserve reenlistment program.  It indicates the forms used in processing immediate reenlistments, to include the DD Form 4/1 and DD Form 4/2 (Enlistment/Reenlistment Document-Armed Forces of the United States), and states that each applicant for immediate reenlistment in the Army Reserve must sign this form when it is completed and execute the oath of enlistment.  The form is the basic document that establishes the legal relationship and the contractual nature of the reenlistment between the U.S. Government and the Soldier.  The DD Form 4 series carbon set consists of an original and three copies.

8.  In addition to the DD Form 4 series, a DA Form 4688 series (Certificate and Acknowledgement of Service Requirements for Individuals Enlisting or Reenlisting in the Individual Ready Reserve) will be completed by individuals reenlisting for continued membership in the IRR.

9.  Two copies of the reenlistment forms will be assembled in one packet and forwarded to the Commander, Army Reserve Personnel Center.  One copy will be provided the Soldier, and one copy retained at the reenlistment activity for a period of six months, after which may be destroyed.

10.  An enlisted Soldier may not be held in service beyond the normal expiration of term of service (ETS) unless the ETS is extended by law.  When through administrative error, or for the convenience of the Government, the reenlistment of a Soldier has been delayed through no fault of the Soldier, Commander, Army Reserve Personnel Center, may authorize the reenlistment agreement to be antedated.  No reenlistment will be antedated without the prior approval of the Commander, Army Reserve Personnel Center.

11.  A request to antedate a reenlistment with a report of a well-founded claim will be prepared and sent to Commander, U.S. Army Reserve Personnel Center, ATTN: DARP-PAT-I, 9700 Page Boulevard, St. Louis, MO 63132-5200, for review and consideration.  Approval or disapproval will be based on the merits of the case as outlined in the report. 
12,  A request initiated on behalf of an IRR or IMA soldier must include a detailed explanation concerning the reason the soldier's reenlistment was delayed in excess of 120 days beyond ETS.  Each case must be considered individually; therefore, the facts must be individually presented.  Each case must also contain the soldier's official military personnel records and a copy of the discharge orders, if discharge action has been accomplished. 

13.  When it is evident that an individual was not afforded the opportunity to immediately reenlist for continued IRR assignment, the Cdr, ARPERCEN (DARP-EPS), may automatically antedate the reenlistment up to 120 days. This will prevent the individual from incurring a break in military service. 

14.  When CG, ARPERCEN has authorized a reenlistment to be antedated, the    DA-authorized date will be entered in items 5 of DD Form 4/1, and 13c and 14f of DD Form 4/2. The actual date on which the oath is administered will be entered in item 19f, DD Form 4/2.  Enter the following statement in item 8b (Remarks) on DD Form 4/1: "This reenl antedated with approval of CG, ARPERCEN, on (date of ARPERCEN approval)." 

15.  In the processing of this case an advisory opinion was obtained from the Director of Enlistment Personnel Management of the Human Resources Command in St. Louis.  That official stated that administrative action could not be taken by that office due to a lack of documentation in the applicant's personnel record.  Army Regulation 140-111 requires verification of data from the Soldier's military personnel record.  The Reserve Data Maintenance System (RDMS) shows the applicant's ETS as 4 August 2001; however, there is not a DD Form 4 reenlistment contract to verify that date.  That office recommended approval of the applicant's request and also recommended that the de facto date of 4 August 2001 be established as the applicant's ETS and that he be granted authority to reenlist effective on 5 August 2001.  The applicant concurred with the opinion.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the Army Reserve for three years on 5 August 1992 in order to receive VSI payments.  In order to continue to receive those payments, he had to continue to serve in the Ready Reserve.  It is inconceivable that the applicant, aware of this requirement, would knowingly discontinue his Reserve service, thereby forfeiting an annual stipend of more than $7600.      

2.  The evidence suggests that the applicant did continue his Reserve service, that is until his discharge on 25 September 2001.  He could not have been discharged from the Army Reserve, had he not been a member.  The Human Resources Command in St. Louis indicated that their data base showed that his ETS was 4 August 2001, an indication that he did enlist, for six years, on              August 1995; or in increments totaling six years beginning on 5 August 1995.   
3.  It is presumed that at least until his discharge he continued to receive annual VSI payments, otherwise he would have taken action sooner to correct his record; however, it could also be presumed that because there are no documents, e.g., enlistment contracts, effected subsequent to 5 August 1992, recoupment action may have been effected for any VSI payments received after August of 1995. 

4.  As a matter of equity and in the interest of justice, it would be appropriate to correct the applicant's records to show that he reenlisted in the Army Reserve (Reinforcement) for six years on 5 August 1995, and that he reenlisted in the Army Reserve on 5 August 2001.  In this respect, the order discharging the applicant from the Army Reserve should be revoked.  It is null and void and of no force or effect. 

BOARD VOTE:

__THD __  __JEA __  __RJW__  GRANT 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 showing that he reenlisted in the Army Reserve (Reinforcement) for six years on 5 August 1995, and that he reenlisted in the Army Reserve on 5 August 2001.  The order discharging the applicant from the Army Reserve should be revoked.  It is null and void and of no force or effect. 

		_Thomas D. Howard, Jr. _
		        CHAIRPERSON

INDEX

CASE ID	AR2003097442	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040506	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	136.00	
2.		
3.		
4.		
5.		
6.