IN THE CASE OF:	  

		BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090014178 


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 stop loss special pay from October 2008 to September 2009.

2.  The applicant states, in effect, that she has been denied stop loss special pay because her situation is not addressed in Military Personnel (MILPER) Message 09-111.  She contends that her records should be changed to reflect the correct involuntary extension of her obligated service and that she should be exempt from the policy outlined in All Army Activities (ALARACT) message 089/2009, paragraph 5, due to her extenuating situation.  She claims that had her paperwork been processed correctly it would have been unnecessary for her to resubmit a new release from active duty (REFRAD) packet and ALARACT message 089/2009, paragraph 5, would not have to be applied to her situation.  She indicates that she should receive stop loss special pay from October 2008 to September 2009 in accordance with MILPER Message 09-111 and her stop loss time frame. 

3.  The applicant states that in August 2009 her Brigade Commander signed a memorandum verifying that her request for unqualified resignation paperwork had not been properly submitted to the Human Resources Command (HRC) in September 2007.  This memorandum was submitted to HRC but her request was denied because her situation is not addressed in MILPER message 09-111.  She contends that her original active duty service obligation should have ended on 
24 May 2008, that she decided to get out of the Army at the completion of her original service obligation, and that in June 2007 she submitted a request for unqualified resignation as part of her REFRAD packet.  She indicates that her Battalion S1 received this paperwork and initiated her REFRAD process, that her packet was processed and approved by her Battalion Commander and her Brigade Commander, and that in October 2007 she was emailed a copy of her completed REFRAD request which included a signed memorandum by the 4th Infantry Division Commanding General.  She goes on to state that the memorandum recommended approval of her original separation date request but disapproval for an exception to policy for stop move/stop loss.  She saved a digital copy of this memorandum but the file was lost because the hard drive it was stored on was damaged.  After receiving her packet verifying all required signatures, she concluded that her role in the REFRAD process had been fulfilled and the packet would then be forwarded to HRC for the appropriate actions to be completed.  She claims that she made no attempt to withdraw or suspend her request and her peers and chain of command were repeatedly informed of her resolute intentions to get out of the Army at the completion of her service obligation.  

4.  The applicant further states that in March 2009, during her deployment in support of Operation Iraqi Freedom, her Battalion S1 informed her that HRC had no record of her REFRAD request and she subsequently did not have orders with an approved expiration term of service (ETS) date.  She claims her REFRAD request had been mishandled at the Division and was never received by HRC in 2007.  As a result, she would have to resubmit a new REFRAD packet no later than 6 months prior to her requested ETS date if she wanted to get out of the Army after her release from stop loss.  In June 2009, she redeployed and submitted a new REFRAD request.  Currently she has an approved ETS date of 22 December 2009 and will begin terminal leave on 1 September after completing 90 days of mandatory deployment reintegration training.  In accordance with ALARACT message 089/2009, paragraph 5, she will not receive stop loss special pay from July 2009 until September 2009 despite the fact that she will still be stop lossed.  Since HRC had no record of her REFRAD packet submitted in 2007, her submission of a REFRAD packet to HRC in June 2009 is interpreted as a voluntary election of continued service and prohibits her from receiving stop loss pay after June 2009.  She points out that she will be stop lossed from May 2008 until September 2009 and should be paid $500 per month of stop loss special pay during this entire period.  

5.  The applicant argues that she should not be punished for actions that could have been prevented had her chain of command processed her REFRAD paperwork to HRC correctly, that she is being unfairly penalized despite the fact that she completed all requirements necessary to apply for unqualified resignation, and that these requirements were completed in a timely manner and within regulation guidelines.  She claims that due to circumstances beyond her control her paperwork was incorrectly submitted to HRC and that the error significantly affected her military records and as a result she has not received the stop loss special pay entitlement for the 16 months that she was stop lossed.  MILPER message 09-111 does not address her situation but supporting documentation proves she was stop lossed from May 2008 to September 2009 and therefore she should be granted an exception to this policy.     

6.  The applicant provides a request for stop loss special pay, dated 4 August 2009; MILPER Message Number 09-111; an email from HRC; a request for unqualified resignation, dated 5 June 2007; a recommendation for approval of a request for unqualified resignation, dated 28 September 2007; and ALARACT message 098/2009 in support of her application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a second lieutenant in the U. S. Army Reserve on 14 May 2004.  She was ordered to active duty on 24 May 2004 for a period of 4 years.  She completed the ordnance officer basic course and was transferred to Fort Hood, Texas for her first and only permanent duty assignment.  She deployed to Iraq in 2005, was awarded the Combat Action Badge and was promoted to the rank of first lieutenant on 29 November 2005.  After completing her 1-year tour in Iraq, she re-deployed with her unit back to Fort Hood.

2.  The applicant's request for relief from active duty (REFRAD) is not available.  However, the applicant provided a memorandum, dated 5 June 2007, from the Commanding Officer, Headquarters, 3rd Battalion, 67th Armored Regiment, at Fort Hood, Texas.  This memorandum recommended that the applicant's request for REFRAD be approved.  The memorandum states, in pertinent part, that the applicant's active duty service obligation would be completed on 
24 May 2008 and that she wanted to pursue a career in the civilian sector.

3.  The applicant was promoted to captain on 1 July 2007.    

4.  The applicant provided a memorandum, dated 28 September 2007, from the Commanding Officer, Headquarters, 4th Brigade Combat Team, 4th Infantry Division (Mechanized), at Fort Hood, Texas.  This memorandum recommended approval of the REFRAD for the applicant. 

5.  In March 2008, just 2 months prior to the end of her active duty obligation, the applicant again deployed to Iraq with her unit.  She completed that tour and again returned to Fort Hood with her unit.

6.  On an unknown date, the applicant requested stop loss special pay.  In support of her request, the applicant provided a memorandum, dated 4 August 2009, from the Commanding Officer, Headquarters and Headquarters Company (HHC), 4th Brigade Combat Team (BCT), 1st Cavalry Division, at Fort Hood, Texas.  This memorandum recommended approval of the applicant's request for Stop Loss Special Pay.  The commander states, in pertinent part, that he had endorsed the applicant's request for unqualified resignation on 28 September 2007, that the request was forwarded to the 4th Infantry Division G1, that the request was never received by HRC for final disposition as required by regulation, and that there were several other officers in this brigade who submitted requests at the same time who did receive final disposition and approval by HRC.  The commander stated that he had no doubt that had this request received final action at HRC it would have been approved.  On 6 August 2009, the applicant's request for stop loss special pay was forwarded to HRC for processing.   

7.  The applicant provided an email, dated 7 August 2009, from HRC in response to her request.  The email states, in pertinent part, that in accordance with MILPER Message 09-111 there are only two ways to qualify for special pay due to stop loss since 1 October 2008.  An officer must have an approved unqualified resignation/retirement and was/is unable to separate at the approved date due to stop loss or an officer must provide a memorandum from the first colonel or higher in his/her chain of command stating their unqualified resignation/ retirement were denied/disapproved due to stop loss.  The email also states that the applicant has an approved separation for 22 December 2009 and does not yet qualify for stop loss special pay as she is not being held beyond her date due to stop loss.  The email also states that the 4th Brigade Combat Team did not have a tracking on the applicant's original request yet that does not change the policy.   

8.  MILPER Message Number 09-111 announces stop loss special pay eligibility and processing procedures for Active Component Soldiers.  Effective March 2009, Active Army enlisted and officers involuntarily held past their contractual ETS or approved separation/retirement dates due to stop loss are entitled to stop loss special pay.  A Soldier is not considered to be in a stop loss status until they serve beyond their contractual ETS or approved separation/retirement date.  Eligible Soldiers will be paid $500 for each month, or any portion of a month, that they are retained on active duty past that date under the provisions of stop loss.  To submit a request for retroactive stop loss special pay, officers must have either a Headquarters Department of the Army approved separation/retirement date or documentation of the original request for separation/retirement including the original requested date of separation/retirement and the documented disapproval/denial of request certified by the first colonel in the chain of command.  If applicable, certification should state that the request was verbally disapproved.  
9.  ALARACT message 098/2009 (Stop Loss Special Pay), dated 26 March 2009, announces Army policy and procedures for implementation of stop loss special pay.  Stop loss special pay is for military members whose established date of separation or approved voluntary retirement is suspended by authority of either Section 123 or Section 12305, Title 10, United States Code (when invoked this authority is commonly referred to as stop loss).  Stop loss special pay will be paid monthly until REFRAD, retirement, or separation; or the month in which the Soldier reenlists, extends, or executes an approved voluntary election of continued service; whichever occurs first.  Payments will be retroactive to 
1 October 2008. 

10.  Army Regulation 600-8-24 (Officer Transfers and Discharges) provides, in pertinent part, that applications for REFRAD due to the expiration of active duty commitment will be submitted not earlier than 12 months or less than 6 months prior to the desired release date or beginning of transition leave, whichever is the earliest.

DISCUSSION AND CONCLUSIONS:

1.  While the evidence of record clearly shows the applicant tendered a request for REFRAD in 2007, the evidence of record also shows that it appears that an administrative error occurred and that her request was not properly processed to completion by the Department.

2.  In a memorandum, dated 4 August 2009, the Commanding Officer, HHC, 4th BCT, 1st Cavalry Division, at Fort Hood, Texas states that he endorsed the applicant's request for REFRAD on 28 September 2007 and that it was forwarded to the 4th Infantry Division G1.  He further states that the request was never received by HRC for final disposition as required by regulation and that there were several other officers in this brigade that submitted requests at the same time that did receive final disposition and approval by HRC.  He also stated that he had no doubt that had this request received final action at HRC it would have been approved.         

3.  It appears that the applicant did not follow up on the status of her request for REFRAD after it was submitted and as a result, she was again deployed to Iraq only 2 months before her active duty service obligation was completed.  It also appears that a government error was made, resulting in the applicant being retained beyond her active duty service obligation date of 24 May 2008 and that she had to resubmit her request for REFRAD.  She currently has an approved separation for 22 December 2009.  However, it is noted that despite the fact that she did not receive a response to her initial request to be REFRAD on 24 May 2008, she did make it known that she intended to separate at the end of her active duty service obligation, she deployed with her unit 2 months before her active duty service obligation was due to end and has continued to serve honorably for an additional year and a half past her active duty service obligation.  

4.  The governing guidelines state that Active Army officers involuntarily held past their approved separation date due to stop loss are entitled to stop loss special pay, that stop loss special pay will be paid monthly until REFRAD or separation, and that payments will be retroactive to 1 October 2008.  

5.  Although the applicant was not specifically designated a "Stop Loss", the fact that the chain of command endorsed her request for REFRAD and was aware that it was her intent to be REFRAD in May 2008, and yet still deployed her to Iraq in March 2008, is sufficient to presume that the unit commander wanted her deploy with the unit instead of being REFRAD, which in itself constitutes a "Stop Loss".  Additionally, the unit did not track her request to completion once she turned it in for appropriate processing.  Therefore, given the fact that her initial request was not processed to completion and that she continued to serve past her requested REFRAD date, it would be in the interest of justice to pay the applicant stop loss special pay from 1 October 2008 to 22 December 2009.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ____X __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board determined that the evidence presented was insufficient to warrant granting the relief requested.  

2. Officers have an inherent responsibility to manage their own careers.  In September 2007, the applicant indicated her resolve to leave the Army by submitting a request for release from active duty effective May 2008.  However, there is no evidence to show she made inquiries, upon the approach of May 2008, when no official response to her request for release from active duty had been received.  A reasonably prudent officer who had indicated a resolve to leave the Army by a specific date would be expected to follow up on a request for release from active duty before that date arrived.  There was a government error in the fact her request was lost.  However, there is no evidence to show that she was involuntarily held in the Army or that her request for release from active duty would have been denied had she followed up on her request in a reasonable period of time.



      _______ _  XXX_____   ___
               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)                                         AR20090014178



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ABCMR Record of Proceedings (cont)                                         AR20090014178



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