IN THE CASE OF:	  

		BOARD DATE:	  4 May 2011

		DOCKET NUMBER:  AR20100021578 


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 April 2006 to January 2007.

2.  The applicant states in an appeal to a Defense Finance and Accounting Service (DFAS) denial for RSLSP that he timely filed his claim for this pay and provided all required supporting documentation.  He states he enlisted in the Ohio Army National Guard (ARNG) for a term of 1 year in 2005 and received no bonus.  He states he was involuntarily stop-lossed past his contractual obligation.  He further states he was deployed to Mississippi and Kuwait during the period 25 April 2006 to 8 August 2007.  He states that while he was in Kuwait he reenlisted in January 2007 for a term of 6 years and received an incentive bonus.  He adds that this bonus did not compensate him for the time served between his previous expiration of term of service (ETS) and his reenlistment date, rather for his future obligation to the Ohio ARNG.

3.  The applicant provides: 

* his DD Form 4 (Enlistment/Reenlistment Document) for his 8 February 2005 1-year enlistment and associated documents
* a DA Form 4187 (Personnel Action)
* his DD Form 4 and associated documents for his 10 January 2007 6-year reenlistment with bonus 
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 8 August 2007
* a State of Ohio Adjutant General's Department memorandum for the applicant, dated 9 December 2009, subject:  Ohio ARNG RSLSP Guidance
* his DD Form 2944 (Claim for RSL Payment), dated 9 March 2010
* a tentative RSLSP approval email, dated 21 May 2010
* an RSLSP denial email, dated 9 June 2010
* an RSLSP reconsideration request to DFAS, dated 28 June 2010
* an RSLSP denial email of his reconsideration request, dated 5 August 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that after having prior service, he enlisted in the Ohio ARNG on 8 February 2005 for a period of 1 year, thus establishing his ETS date at the time as 7 February 2006.  The highest pay grade he held is E-6.

2.  A DA Form 4187, dated 11 October 2005, shows he was involuntarily retained under stop loss because his unit received mobilization orders.  This form stated upon demobilization his ETS date would be adjusted to the demobilization date plus 90 days to allow for outprocessing.  The form further indicated that Soldiers under this status who reenlist at any time during the period of involuntary extension will have their ETS date changed to the actual ETS date as long as the period of extension covers the mobilization period plus 90 days.
 
3.  His DD Form 214 for the period ending 8 August 2007 shows he entered active duty from the Ohio ARNG on 25 April 2006 and that he served in Kuwait in support of Operation Iraqi Freedom during the period 21 July 2006 to 21 July 2007 prior to being released from active duty on 8 August 2007.

4.  On 10 January 2007 during his deployment, he executed a reenlistment for a period of 6 years.  In conjunction with this reenlistment he received cash incentive bonus and student loan repayment and Montgomery GI Bill kicker incentives.

5.  He provided a copy of a State of Ohio Adjutant General's Department memorandum addressed to him, subject:  Ohio ARNG RSLSP Guidance, dated 9 December 2009, which indicated he was eligible to receive stop loss pay pursuant to filing a claim prior to 21 October 2010.  An annotation on the memorandum indicated he received the memorandum on 1 March 2010.

6.  He provided a DD Form 2944, dated 9 March 2010, showing he applied for RSLSP for the period 25 April 2006 to 10 January 2007.

7.  An email, dated 9 June 2010, shows his case for RSLSP was denied due to being identified as having received an incentive bonus and, in accordance with the 2010 Department of Defense (DOD) Appropriations Act, was not eligible for RSLSP.

8.  He submitted a reconsideration of his request for RSLSP for the period April 2006 through January 2007.  On 5 August 2010, his claim was again denied.  The denial email stated he was ineligible for RSLSP due to the reenlistment bonus he received after his stop loss period.

9.  In the processing of this case an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB).  The advisory official recommended disapproval of the applicant's request based on his voluntary reenlistment on 10 January 2007 for a period of 6 years for which he received a $15,000.00 bonus under the Selected Reserve Incentive Program.  NGB indicated a subsequent reenlistment with a bonus disqualifies the applicant from receiving RSLSP.  NGB further stated the 2010 DOD Appropriations Act, section 8108, states in part, "Clarification of RSLSP Authority-Effect of Subsequent Reenlistment of Voluntary Extension of Service-Members of the Armed Forces, retired members, and former members otherwise described in subsection (a) are not eligible for a payment under this section if the members (1) voluntarily reenlisted or extended, or after their eligibility for retirement was suspended, pursuant to a stop-loss authority; and (2) received a bonus for such enlistment or extension of service."

10.  The applicant was furnished a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  In his response, he stated he is currently deployed to Iraq with the Ohio ARNG.  He states the purpose of the RSLSP Program is to compensate Soldiers for each month, or portion of a month, they were retained on active duty beyond their contracted separation date.  He adds he was mobilized and deployed for approximately 10 months beyond his contractual ETS prior to reenlisting on 10 January 2007.  He further states he is appealing the denial of his claim due to ineligibility because he received a reenlistment bonus in conjunction with his January 2007 reenlistment.  He further states that the fact he reenlisted and received a reenlistment bonus is irrelevant, but what is relevant is that he completed his contractual obligation to the U.S. Army and spent an additional 10 months on stop loss.  He then adds he would have, in fact, received the RSLSP had he been notified earlier of his eligibility prior to the criteria for the program being changed.

11.  Department of the Army Personnel Policy Guidance for Overseas Contingency Operations, chapter 1, paragraph 3j, states the authority of the President or his designee to suspend certain laws, regulations, and policies that allow promotion, separation, or retirement is commonly called "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 (RC) 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.

12.  All Army Activities 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 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 2009 their enlistment or period of obligated service was involuntarily extended or whose established date of separation, release from active duty (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, whichever is later.

13.  A DOD news release posted on the Internet, dated 21 October 2009, provides for DOD implementation of RSLSP.  It states that active, reserve, and former service members who had their enlistment extended or retirement suspended due to stop loss are eligible for this special pay if they served on active duty between 11 September 2001 and 30 September 2009.  It further provides that:

	a.  Service members could begin submitting their claim for RSLSP on 21 October 2009.

	b.  Eligible personnel will receive a payment of $500.00 per month for each month (or any portion of a month) that a member was retained on active duty due to stop loss.  Service members must provide documented proof they were stop-lossed with their claim.

14.  An update to the DOD news release, dated 5 January 2010, stated section 8108 of the 2010 DOD Appropriations Act effective 19 December 2009 contained provisions that modified eligibility for RSLSP.  Stop-lossed service members who voluntarily reenlisted or extended their service and received a bonus for such reenlistment or extension of service are no longer eligible to receive RSLSP.  Applications from affected service members will be returned with an explanation of the change in law that made them no longer eligible.  The military services will not recoup previously-issued payments.  Congress also extended legal authority for stop loss special pay to continue payments to active duty service members extended under stop loss authority through Fiscal Year 2010.

DISCUSSION AND CONCLUSIONS:

1.  The RSLSP was authorized by the DOD news release posted on 21 October 2009, but that news release was modified by a second news release ,dated 5 January 2010.  This modification specified that Soldiers who received a bonus for an extension or reenlistment were not eligible for RSLSP.

2.  The applicant's request for RSLSP is dated 9 March 2010, which was subsequent to the second news release's explanation that RSLSP was not authorized to Soldiers who extended or reenlisted for a bonus.

3.  As such, the applicant was properly denied RSLSP.

4.  Many Soldiers lost eligibility for RSLSP by reenlisting for a bonus.  To grant the applicant's request would be giving him a benefit not afforded to others in the same situation.

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 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)                                         AR20100021578



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ABCMR Record of Proceedings (cont)                                         AR20100021578



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