IN THE CASE OF:	  

		BOARD DATE:	    20 April 2010

		DOCKET NUMBER:  AR20090016387 


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 correction of his records to show he is eligible for [retroactive] stop loss special pay.

2.  The applicant states he doesn't have the required documentation because his unit was not accepting resignation requests due to stop loss.  He states he was told verbally by his chain of command that he was unable to submit a request for voluntary separation due to stop loss for an upcoming deployment to Afghanistan.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty); MILPER Message Number 9-111 issued on 14 May 2009; Orders 297-303 (deployment orders), dated 24 October 2007; and a Memorandum, subject: Unqualified Resignation [applicant], dated 24 September 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve Commissioned Officer in the Quartermaster Corps in the rank of second lieutenant on 20 May 2004 and entered active duty the next day.  He was promoted to captain on 1 July 2007.

2.  Orders 119-41-A-1656, dated 28 April 2004, contained in the applicant's records maintained in the interactive Personnel Electronic Records Management System (iPERMS) show he had an active duty commitment of four years.

3.  The applicant's DD Form 214 shows he served in Afghanistan during the period 15 January 2008 through 14 January 2009.

4.  The applicant's DD Form 214 shows he was discharged from active duty for miscellaneous/general reasons on 9 April 2009 after completing 4 years, 10 months, and 19 days of active service.

5.  A memorandum, dated 2 September 2008, shows the applicant applied for unqualified resignation from the Regular Army effective 9 April 2009 or as soon as possible thereafter.  His request indicates his Active Duty Service Obligation (ADSO) was completed on 25 May 2008.

6.  A U.S. Army Human Resources Command, Alexandria, VA, memorandum, dated 24 September 2008, shows his request for an unqualified resignation was approved with an effective date of 9 April 2009.

7.  MILPER Message Number 09-111 states that effective March 2009, Active Army enlisted and officers involuntarily held past their contractual expiration term of service (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.  Retroactive payments could be made back to 1 October 2008 for otherwise eligible Soldiers.

8.  Paragraph 6a of this message states that officers assigned to Active Army units which have deployed or will deploy before 1 January 2010 and whose request to separate or retire was disapproved by the Army due to stop loss restrictions may be eligible for retroactive stop loss special pay.  Request for retroactive stop loss special pay must be based on a Department of the Army disapproval of a separation/retirement request, a denied attempt to submit a separation/retirement request certified by the first colonel in the chain of command, or extension beyond an approved separation date due to the officer being in stop loss status which resulted in the officer's period of obligated service being involuntarily extended.  Officers who meet the above criteria including time in stop loss, and who are not receiving stop loss special pay may request stop loss special pay through their unit commanders (colonel or higher) who will forward to Army Human Resources Command.

9.  Paragraph 6b states that to submit a request for retroactive stop loss special pay, officers must have either:


	a.  a Headquarters Department of the Army approved separation/retirement date.

	b.  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.

10.  Paragraph 7 states Soldiers who believe they were denied the opportunity to submit for separation/retirement but who are unable to provide documentation and certification may apply to this Board for review in accordance with this Board's procedures.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the applicant deployed to Afghanistan on or about 15 January 2008 and completed his ADSO on 25 May 2008.  On 2 September 2008, he applied for separation.

2.  There is no evidence and the applicant has provided none that shows a Department of the Army (DA) disapproval of a separation request, a denied attempt to submit a separation request certified by the first colonel in the chain of command, or extension beyond an approved separation date due to the officer being in stop loss status which resulted in the officer's period of obligated service being involuntarily extended.

3.  However, based on his contention he was told verbally by his chain of command that the unit was not accepting resignation requests due to stop loss for an upcoming deployment to Afghanistan, that he was deployed at the time of the expiration of his ADSO in May 2008, that he applied for resignation in September 2008, and that he was separated approximately 90 days after completion of his deployment, the preponderance of evidence indicates the applicant intended to resign upon completion of his ADSO.  Therefore, it would be in the interest of equity and justice to show that the applicant was eligible for stop loss special pay retroactive for the period 1 October 2008 to 9 April 2009.







BOARD VOTE:

____X___  __X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 was retroactively eligible for stop loss special pay for the period 1 October 2008 to 9 April 2009.

2.  The Board further recommends that based on the above correction the Defense Finance and Accounting Service (DFAS) should audit the applicant's pay account and pay him accordingly based on this correction.



      ___________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)                                         AR20090016387



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ABCMR Record of Proceedings (cont)                                         AR20090016387



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