IN THE CASE OF:	  

		BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090015569 


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 payment of his stop loss special pay from 1 October 2008 to 19 February 2009.

2.  The applicant states that he was denied payment of stop loss special pay by the U.S. Army Human Resources Command (USAHRC) under the provisions of All Army Activities (ALARACT) Message 089/2009, dated 26 March 2009, and Military Personnel (MILPER) Message 09-111, dated 14 May 2009.

	a.  He deployed to Iraq on a 15-month rotation in support of Operation Iraqi Freedom (OIF) on 1 July 2007 with a projected redeployment date of 30 September 2008.  His original separation date based on a voluntary request for resignation was 14 July 2007 (the date his stop loss began).  In January 2008, he was advised by his chain of command and the transition center in Ansbach, Germany, he needed to submit a second request for voluntary resignation in order to separate from the Army after his redeployment and that he must do so not earlier than 90 days past his redeployment stabilization window plus his transition leave.  He was also told he would not be allowed to separate without doing so.

	b.  Based on this guidance, he submitted a second request for resignation with an effective date of 19 February 2009, precisely the date of the lifting of his stop loss order, plus stabilization, plus transition leave.  At no point was he advised that this action would terminate his stop loss status or eligibility for any compensation or benefits associated with this status.  He redeployed on 21 September 2008 and was ultimately discharged on 19 February 2009.  He learned about stop loss pay from a friend and submitted his request to USAHRC, but he was denied based on his submission of a second voluntary resignation.

	c.  The USAHRC decision to deny him stop loss pay does not fairly account for the injustice done by the guidance given by his chain of command.  While the policy states that stop loss special pay will be paid monthly until release from active duty, retirement, or separation, it is clear that he had no intent of voluntarily continuing service by submitting his second resignation.  He was trying to fulfill the administrative requirements to separate as soon as he was released from the stop loss order.

	d.  He endured the same problem regarding the second memorandum for resignation when he applied for the Transition Assistance Management Program for transitional health care and received a favorable decision from the same transition center that originally advised him to submit the second resignation.  It acknowledged the incorrect guidance and he was allowed the entitlement of 6 months of medical care past his discharge date and it even indicated on his DD Form 214 (Certificate of Release or Discharge from Active Duty) that he was retained on active duty for a period of 565 days for the convenience of the government.  He hopes the Board would use the same discretion and fair assessment of his situation.

	e.  It is unjust to withhold his entitlements based on the submission of the second resignation request when he acted in good faith on the guidance given by appropriate authorities responsible for processing his separation.

3.  The applicant provides a copy of ALARACT 089/2009, dated 26 March 2009; a copy of MILPER Message Number 09-111, dated 14 May 2009; a copy of Orders 151-002 issued by Headquarters, V Corps, dated 31 May 2007; a copy of a USAHRC memorandum approving his unqualified resignation, dated 13 September 2006; a copy of his DD Form 214, dated 19 February 2009; a copy of a USAHRC memorandum denying stop loss special pay, dated 18 August 2009; and a copy of an electronic mail (email) appeal of the USAHRC decision, dated 18 August 2009,.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a Quartermaster Corps second lieutenant in the U.S. Army Reserve and executed an oath of office with concurrent call to active duty on 9 May 2002.  He completed the Quartermaster Officer Basic Course and was promoted to captain/O-3.  He was assigned to Company A, 7th Battalion, 159th Aviation Regiment, Germany.

2.  On an unknown date in 2006, he submitted a request for unqualified resignation in accordance with Army Regulation 600-8-24 (Officer Transfer and Discharges).  His request was ultimately approved on 13 September 2006 for separation on 14 July 2007.

3.  On 31 May 2007, the 12th Combat Aviation Brigade and its subordinate elements were ordered on a temporary change of station to Iraq effective on or about 5 July 2007.

4.  On 1 July 2007, he was ordered to deploy in a temporary change of station status in support of OIF for a period of 455 days effective on or about 2 July 2007.  He was assigned to Headquarters and Headquarters Company, 12th Combat Aviation Brigade.

5.  On 19 February 2008, he requested an amendment to the date of his separation from 14 July 2007 to 19 February 2009 by memorandum.  He remarked that he wanted to align his effective date of resignation with that of his spouse, also a service member, and that his original separation date had passed due to stop loss.  He indicated he planned to use 47 days of transition leave upon redeployment.

6.  On 20 March 2008, Headquarters, Department of the Army (HQDA) approved his request for unqualified resignation for 19 February 2009 subject to stop loss.

7.  He returned from Iraq to Germany on 21 September 2008.

8.  He was honorably discharged on 19 February 2009.  The DD Form 214 he was issued shows he completed 6 years, 9 months, and 11 days of creditable active service.  Item 18 (Remarks) of this form shows he was retained in the service for 586 days for the convenience of the government per Title 10, U.S. Code, section 12305.

9.  On 14 August 2009, he requested payment of stop loss special pay.

10.  On 18 August 2009, USAHRC notified him by memorandum that his request was disapproved because he requested a date change to his approved voluntary separation in March 2008.

11.  On 18 August 2009, he appealed the USAHRC decision by email and argued that he acted in good faith and submitted the necessary paperwork based on the guidance he received from his chain of command and the transition center and that he should not be penalized for being misinformed.

12.  Public Law 110-329, dated 30 September 2008, authorized stop loss special pay to military members whose established date of separation or approved voluntary retirement is suspended by authority of section 123 or section 12305 of Title 10, U.S. Code.

13.  ALARACT 089/2009, dated 26 March 2009, announced Army policy and procedures for the implementation of stop loss special pay.  Effective September 2009, Soldiers serving on active duty at any time during Fiscal Year 2009 whose enlistment or obligated service is involuntarily extended or whose eligibility for involuntary separation or retirement is suspended pursuant to Title 10, U.S. Code, section 123 or section 12305, or any other provision of law will be paid $500.00 for each month or portion of the month retained on active duty past their:  (a) contractual expiration of term of service (ETS) or, in the case of Reserve Component (RC), a contractual ETS in the Selected Reserve; (b) an approved separation date based on unqualified resignation or release from active duty or, in the case of RC, an approved request for transfer to the Individual Ready Reserve, or (c) approved retirement based on length of service.  Payment will be retroactive to 1 October 2008.

14.  MILPER Message Number 09-111, dated 14 May 2009, announced the stop loss special pay eligibility and processing procedures.  Effective March 2009, enlisted and officer personnel 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 $500.00 for each month or portion of the month that they are retained on active duty past their contractual separation date.  HQDA will identify Soldiers who were previously stop-lossed at any time between 1 October 2008 and 28 February 2009 and are eligible for retroactive stop loss special pay.  Request for retroactive stop loss special pay must be based on an HQDA disapproval of a separation/retirement request, a denied attempt to submit a separation/retirement request, or extension beyond an approved separation date due to the officer's period of obligated service being involuntarily extended.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be paid stop loss special pay from October 2008 to February 2009.

2.  The evidence of record shows he submitted a voluntary request for unqualified resignation that was ultimately approved for separation on 14 July 2007.  Prior to this approval, his unit was alerted for a 15-month deployment in support of OIF and he subsequently served in Iraq from 22 June 2007 to 21 September 2008.

3.  During his deployment, he submitted a request to change the date of his separation citing the alignment of his separation date with that of his wife's and the stop loss policy.  His request was again approved for separation on 19 February 2009 to accommodate a 90-day post-deployment stabilization and transition leave.

4.  Requests for retroactive stop loss special pay must be based on an HQDA disapproval of a separation/retirement request, a denied attempt to submit a separation/retirement request, or extension beyond an approved separation date due to the officer's period of obligated service being involuntarily extended.  In his case, he was neither denied separation nor was he involuntarily extended.  His request to change his resignation date was a voluntary request that was ultimately approved for the date he desired.  Except for his voluntary request to change his resignation date to February 2009, it appears he would have been eligible for separation upon his return to Germany in September 2008.

5.  His sincerity, deployments, and overall service are not in question.  However, he does not meet the criteria for payment of stop loss special pay.  Therefore, he should not be granted 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 for correction of the records of the individual concerned.



      _________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)                                         AR20090015569



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