IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100014492 


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 retroactive stop loss special pay (RSLSP) from 24 March 2004 to 3 April 2005. 

2.  The applicant states he was told to sign a new extension in the Army National Guard (ARNG) and he did so; otherwise, he would have gone home.  He previously served with the U.S. Army Reserve (USAR) but he transferred to the ARNG.  When his enlistment contract was up, he thought the ARNG would send him home; however, he was told to sign an extension for 3 more years.  He could not get out; the ARNG needed his specialty.  So, he served for 18 months in Iraq. Since he had no choice and since the extension was wrongfully completed, he should be entitled to the RSLSP.

3.  The applicant provides a copy of:

* his RSLSP reconsideration request, dated 30 March 2010
* two denial emails, dated 8 April 2010 and 28 April 2010
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 3 April 2005
* his DA Form 4836-E (Oath of Extension of Enlistment or Reenlistment), dated 7 January 2004
* his DD Form 4 (Enlistment/Reenlistment Document), dated 25 March 1998
* mobilization orders, dated 9 January 2004
* 
his release from active duty (REFRAD) orders, dated 7 March 2005
* his National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement), prepared on 27 April 2006
* a memorandum, Subject:  Notification of Eligibility for Retired Pay at
Age 60 (Twenty Year Letter), dated 26 July 1996 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having had prior service in the Regular Army and the USAR, the applicant's records show he enlisted in the California ARNG (CAARNG) on 25 March 1998 for a period of 6 years, thus establishing his expiration of term of service (ETS) date as 24 March 2004.  He held military occupational specialty 88M (Motor Transport Operator).

3.  On 5 January 2004, he was ordered to active duty in support of Operation Iraqi Freedom by Orders 009-369, issued by the State of California, Office of the Adjutant General, Sacramento, CA, dated 9 January 2004.

4.  On 7 January 2004, prior to his deployment, he executed, in effect, an extension of his enlistment for a period of 3 years, 1 month, and 1 day, thereby establishing his new ETS date as 24 April 2007.

5.  He subsequently served in Iraq from 12 March 2004 to what appears to be 4 March 2005.  He was honorably REFRAD to his CAARNG unit on 3 April 2005.

6.  His original application for RSLSP is not available for review with this case.  However, he received a denial email on 8 April 2010, informing him that he was ineligible for RSLSP.

7.  He submitted a reconsideration of his request for RSLSP for the period 24 March 2004 through 4 March 2005. However, on 28 April 2010, his claim was denied.  The denial email stated that he was ineligible for RSLSP because during the period in question, he was under a military contract.  His ETS was 24 March 2004 and he voluntarily signed an extension of his enlistment contract through
24 April 2007.

8.  In the processing of this case, on 22 June 2010 an advisory opinion was obtained from the Chief, Personnel Division, NGB.  The advisory official recommended disapproval of the applicant's request based on his voluntary request for an extension of his initial enlistment contract.  On 2 July 2010, the applicant was furnished a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

9.  Department of the Army Personnel Policy Guidance for Overseas Contingency Operations, chapter 1, paragraph 3j, states that the authority of the President or his designee, to suspend certain laws, regulations, and policies that allow promotion, separation, or retirement is commonly known as Stop Loss when invoked.  Stop Loss is a temporary management tool authorized by
Title 10, U.S. Code, section 12305.  The authority of stop loss is tied to the order to active duty of Reserve Component Soldiers under a mobilization scenario and a determination that certain or all members of the armed forces are essential for the national security of the United States.  The purpose of stop loss is to sustain a force that has trained together to remain a cohesive element throughout the deployment.

10.  All Army Activities (ALARACT) Message 277/2009, dated 7 October 2009, announced Army policy and procedures for implementation of RSLSP.  It states that RSLSP is a special pay for military members to include members of the Reserve Component (RC), former and retired members under the jurisdiction of the Secretary who while serving on active duty at any time from 11 September 2001 to 30 September 2008 their enlistment or period of obligated service was involuntarily extended or whose established date of separation, REFRAD, or approved voluntary retirement was involuntarily suspended by authority of either section 123 or section 12305, Title 10, U.S. Code (commonly known as Stop Loss Authority).  Effective 21 October 2009, eligible service members will be paid $500.00 for each month or portion of a month retained on active duty past contractual ETS or in the case of RC, a contractual ETS in the Selected Reserve; an approved separation date based on unqualified resignation or REFRAD, or in the case of RC, an approved request for transfer to the Individual Ready Reserve (IRR) provided the service member completed the statutory or contractual ETS in 

the Selected Reserve; approved retirement based on length of service; approved memorandum of resignation for officers serving beyond their military service obligation; and in the case of IRR, Individual Mobilization Augmentees and other individually managed service members, military service obligation or contractual term of service, whoever is later. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant executed a voluntary extension of his enlistment contract in the ARNG on 7 January 2004, thereby establishing his new ETS date as 24 April 2007.  He did so two months prior to his original ETS date of 24 March 2004.  Therefore, he was never involuntarily extended.

2.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100014492



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ABCMR Record of Proceedings (cont)                                         AR20100014492



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