IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20100022225 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 July 2006 to show award of the Legion of Merit (LOM)
* Payment of retroactive stop loss pay (RSLSP)

2.  He states he submitted an RSLSP claim for 46 months, but he was only paid for 15 months.  His initial claim was for the period 30 September 2002 through
31 July 2006.  His claim was approved, but only partially paid in February 2010 for the 12-month period from 31 August 2005 through 31 July 2006.  He questioned the rationale for the payment and was told to submit a claim for reconsideration for the period 29 November 2001 through 14 January 2002 even though he felt he was not eligible for RSLSP for that period.  However, the claim was approved and he received an additional 3 months of RSLSP for a total of 
15 months of RSLSP.

3.  He states he again questioned his RSLSP payments and he was told the maximum RSLSP payout was 24 months.  He was also told no one had ever requested RSLSP for the length of period he was requesting and there was no record he submitted any retirement requests from January 2002.  He believes he was affected by stop loss from the period of his initial retirement request date of 30 September 2002 until he actually retired on 31 July 2006, a period of

46 months.  He continues that he does not know what caused the error, other than the RSLSP office messing up the dates.

4.  He provides:

* two memoranda addressed to the Commander, U.S. Total Army Personnel Command (PERSCOM), both dated 29 November 2001
* an email message, dated 14 January 2002
* Orders 327-001, issued by Headquarters, V Corps, dated 23 November 2004, deploying him to Iraq
* Orders 219-04, issued by the same headquarters, 8 August 2006, awarding him the LOM

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.  The applicant had prior enlisted service.  He was appointed as a warrant officer in the Regular Army (RA) as a helicopter pilot and he entered active duty on 31 July 1986.

3.  On 1 October 2000, he was promoted to the rank/grade of chief warrant four (CW4)/W4.  As a result of his promotion, he incurred a 2-year active duty service obligation (ADSO) ending on 30 September 2002.

4.  On 29 November 2001, he submitted a request for voluntary retirement with a release from active duty date of 30 September 2002 and placement on the retired list on 1 October 2002.

5.  An email, dated 14 January 2002, shows his request for voluntary retirement was disapproved by PERSCOM.  The email stated, “MPD (Division agency) called 

PERSCOM to get a control number in order to send the paperwork to them, and were told they wouldn't even give them a control number."  The email further stated, “The guidance PERSCOM gave was that if he or others want to retire during stop/loss, that they need to include their extenuating circumstances.”

6.  The applicant never submitted his retirement request with information which complied with stop loss.  On 3 July 2002, he was assigned to the 236th Medical Company (Air Ambulance), 30th Medical Brigade, V Corps, Landstuhl, Germany.

7.  Military Personnel (MILPER) Message Number 03-184, TAPC-PDT-PM, dated 4 June 2003, titled: “Stop Loss - Total Lift of Active Component (AC) Unit Stop Loss for Operation Iraqi Freedom (OIF) Units, and Partial Lift Number 3 of All Component 12-Month, Skill-Based Stop Loss” states in section 3, paragraph B(4), Active Component (AC) warrant officers whose previous retirement of separation approval was revoked or suspended as a result of their stop loss must resubmit their request for retirement or separation if they still desire to retire or separate.

8.  Orders Number 327-001, dated 23 November 2004, shows the 236th Medical Company (Air Ambulance), 30th Medical Brigade was ordered to deploy in a temporary change of station status in support of OIF effective 5 January 2005.  His DD Form 214 shows he served in Iraq during the period 9 January 2005 through 17 December 2005.

9.  On 2 August 2005, the applicant submitted a request for voluntary retirement in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges) with a retirement date of 31 July 2006 and placement on the retired list effective 1 August 2006.  On 22 February 2006, his request for retirement was approved and he was assigned a valid control number.

10.  His DD Form 214 for the period ending 31 July 2006 shows he was retired by reason of sufficient service for retirement.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Retired) and placed on the retired list effective 1 August 2006.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show the LOM.

11.  Permanent Orders Number 219-04, dated 8 August 2006, shows he was awarded the LOM for exceptionally meritorious service from 31 July 1996 to        1 August 2006.

12.  His claims submitted to Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1 for RSLSP are not available for review with this case.
13.  On 22 February 2011, an advisory opinion was obtained from Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1.  The advisory official recommended disapproval of the applicant's request for 57 months of RSLSP.  The official stated there were no records that the applicant was held for the period he claimed.  MILPER Message Number 03-184 states “AC Warrant Officers whose previous retirement or separation approval was revoked or suspended as a result of their Stop Loss status must resubmit their requests for retirement or separation if they still desire to separate.”  The official stated 57 months of RSLSP is far in excess of what would be expected under Stop Loss guidelines and that a records review did not support the months claimed.  The official further stated there was not a single document pertaining to a request for retirement from the applicant for the period 2002 to 2005; however, a
DA Form 4187 (Personnel Actions) was located, dated 31 August 2005, wherein the applicant requested retirement while he was serving in Iraq.

14.  On 23 February 2011, a copy of the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 17 March 2011, he submitted a rebuttal in which he indicated he wanted the Board to determine “what exactly is the time period I was affected by the stop loss messages and actions that occurred in December 2001, and were repeated throughout the next several years.”

15.  MILPER Message Number 09-111 states that effective March 2009, Active Army enlisted personnel and officers involuntarily held past their contractual expiration of 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.

16.  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 RSLSP.  Request for RSLSP 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 it to the Army Human Resources Command.

17.  Paragraph 6b states that to submit a request for RSLSP, officers must have either:

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

	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.

18.  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.

19.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies governing promotion of Army commissioned and warrant officers on the Active Duty List.  Paragraph 1-18b states that a warrant officer who accepts promotion to the grade of CW3, CW4, or CW5 will incur a 2-year ADSO.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was awarded the Legion of Merit.  Therefore, his DD Form 214 should be corrected to show this award.

2.  The RSLSP policy authorizes eligible service members a payment of $500.00 per month or portion of the month of active duty past their contractual ETS or approved separation/retirement dates due to stop loss.

3.  The purpose of the RSLSP is to compensate qualified Soldiers held beyond their contractual agreement.  The period claimed must have a start and end date based on the active duty past their contractual ETS or approved separation/
retirement.

4.  Evidence of record shows on:

* 1 October 2000, he was promoted to CW4, which incurred a 2-year ADSO [ending on 30 September 2002]
* 29 November 2001, he submitted a request for voluntary retirement
* 
14 January 2002, his request was disapproved by PERSCOM
* July 2002, he was assigned to Germany
* 13 June 2003, AC unit stop loss was lifted and all component skill-based stop loss was partially lifted
* 9 January 2005, he deployed to Iraq 
* 2 August 2005, his second request for voluntary retirement was approved
* 17 December 2006, he returned from Iraq 
* 31 July 2006, he retired 
* 1 August 2006, he was placed on the retired list 

5.  He contends that he should receive RSLSP for the period September 2002 through July 2006.  However, there is no evidence in his military personnel record that shows he was issued retirement orders or that he was involuntarily held past an approved retirement date due to stop loss.  It appears that he was under the impression he was prohibited from resubmitting an earlier request for retirement.  However, stop loss for him was lifted in June 2003.

6.  Evidence of record show that his initial request for voluntary retirement was not acted on, but he was advised that if he and others wished to retire during stop loss he needed to include extenuating circumstances in the request.  There is no evidence that he elected to do so.

7.  Evidence of record further shows his second voluntary request to retire – his only correct request - was approved and his retirement date was established as 31 July 2006 with placement on the retired list effective 1 August 2006.  However, it appears he could have request retirement when stop loss was lifted in June 2003.  There is no evidence of record and he did not provide any evidence that shows he was held past his approved retirement date due to stop loss.

8.  In view of the foregoing, there is no basis for granting the applicant's request for RSLSP in excess of the 15 months of RSLSP he already received.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to item item 13 of his DD Form 214 for the period ending 31 July 2006 the Legion of Merit.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to granting RSLSP in excess of the 15 months of RSLSP he already received.



      ___________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)                                         AR20100022225



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ABCMR Record of Proceedings (cont)                                         AR20100022225



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