IN THE CASE OF:	  

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100022982 


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) for 15 instead of 3 months.

2.  The applicant states he is entitled to only 3 months of RSLSP according to the Army.  However, the DA Form 4187 (Personnel Action) he signed on 23 October 2004 states he went from voluntary to involuntary status effective 23 October 2004.  On the same document, it explains the start date of the involuntary extension.  His expiration of term of service (ETS) date fell on 23 October 2004.  The remarks block of the DA Form 4187 states he would remain subject to stop-loss policies.  He adds:

	a.  He entered active duty on 25 October 2004 and he was honorably released from active duty (REFRAD) on 22 December 2005.  These dates show he was in a stop-loss status for 15 months, not 3 months as the Army claims.

	b.  He had signed an oath of extension of his enlistment for 1 year on 2 October 2004 which established a new ETS date of 23 October 2005.  In his defense, he states there were no documents signed on 2 October 2004.  Only one oath of extension was signed on 18 October 2001 in which he enlisted for 3 years which established his new ETS date as 23 October 2004.  His ETS was the same date he signed the DA Form 4187 that started his involuntary extension under the stop-loss procedures.


3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 4187
* letter from the Defense Finance and Accounting Service (DFAS)
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment)
* Email exchange with stop-loss officials

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Michigan Army National Guard (MIARNG) on 24 October 1995.  He entered active duty for training on 13 June 1996 and he was awarded military occupational specialty 44B (Metal Worker).

2.  On 18 October 2001, he executed and signed a 3-year extension of his original enlistment in the ARNG, thus establishing his new ETS date as 23 October 2004.

3.  On 2 October 2004, he executed a 1-year extension of his original enlistment in the ARNG, thus establishing a new ETS date of 23 October 2005.

4.  On 25 October 2004, he signed a DA Form 4187 acknowledging a change in his status from voluntary to involuntary extension under the stop-loss procedures. 
The form states in accordance with Military Personnel Message 03-40, subject:  Reserve Component (RC) Stop Loss Procedures for the ARNG, and under authority of executive orders and having not voluntarily extended his ETS date of 23 October 2004, he was hereby involuntarily extended to 24 December 2031 as a member of the MIARNG.  He would remain subject to stop-loss policies, in pertinent part, in the event his unit is mobilized under the authority identified on this form or under authority in support of the Global War on Terrorism and the imposed ETS date of 31 December 2031 would remain in effect until such time either of these events occur:

	a.  he is REFRAD prior to the demobilization of his unit or

	b.  his unit of assignment is REFRAD and demobilized.  He would remain a member of his unit of assignment under the conditions of stop loss for 90 days.

5.  On 25 October 2004, he was ordered to active duty in support of Operation Iraqi Freedom in accordance with Title 10, U.S. Code, section 12302, for a period not to exceed 730 days.

6.  He served in Kuwait/Iraq from 30 December 2004 to 2 December 2005.  He was honorably REFRAD on 22 December 2005.  He was ultimately discharged from the ARNG on 31 March 2006.

7.  On 7 November 2009, he applied for retroactive stop loss payment.  He claimed the period 23 October 2004 to 22 December 2005.  However, after processing his claim, he was authorized payment from 23 October 2005 to 22 December 2005.  Accordingly, DFAS paid him the amount of $500.00 per month for the period 23 October 2005 to 22 December 2005.

8.  On 19 February 2010, he appealed the decision and requested payment from 23 October 2004 to 22 December 2005.  His appeal was considered but denied.  Officials notified him that he signed an oath of extension of his enlistment on 2 October 2004 for 1 year which established a new ETS date of 23 October 2005.  He was released from active duty on 22 December 2005.  He was eligible for 3 months of stop-loss pay.

9.  On 24 August 2010, his claim regarding retroactive stop-loss pay for the period 23 October 2004 to 22 December 2005 was revisited for reconsideration, but he remained ineligible for the entire period claimed.

10.  On 10 February 2011, an advisory opinion from Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, was obtained in the processing of the case.  An official recommended disapproval of the applicant's request.  The official stated the applicant claimed 18 months of retroactive stop-loss pay, but he was only entitled to payment for 3 months.  The special pay is authorized to Soldiers involuntarily held beyond the contractual obligation while serving in an active duty status.  The applicant signed a 3-year extension of his enlistment on 23 October 2001 and another 1-year extension on 23 October 2004 resulting in an ETS date of 23 October 2005.  He was released from active duty on 22 December 2005 which resulted in a 3-month entitlement of stop-loss pay.

11.  On 15 February 2011, the applicant submitted a rebuttal in which he stated:

* he signed a 3-year extension on 23 October 2001, but this extension has nothing to do with stop loss
* the DA Form 4187 clearly shows his status went from voluntary to involuntary extension effective 23 October 2004
* the remarks section of the DA Form 4187 clearly shows he was extended under the stop-loss policy
* the dictionary defines involuntary as an action against someone's will
* 
the DA Form 4187 does not state he signed a 1-year extension
* he should be entitled to 18 months of stop-loss pay

12.  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 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 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.

13.  All Army Activities Message 277/2009, dated 7 October 2009, announced Army policy and procedures for implementation of RSLSP.  It states, "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 2008, their enlistment or period of obligated service was involuntarily extended or whose established date of separation, release from active duty, 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).  This special pay is specifically authorized to be claimed retroactively as provided in this message.  Effective 21 October 2009, eligible service members, as provided in paragraph 2 above, will be paid $500.00 for each month or portion of a month retained on active duty past:  (a) contractual ETS or, in the case of the RC, a contractual ETS in the Selected Reserve; (b) an approved separation date based on unqualified resignation or REFRAD or, in the case of the 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); (c) approved retirement based on length of service; (d) approved memorandum of resignation for officers serving beyond their military service obligation and/or additional service obligation; and (e)  in the case of the Ready Reserve (IRR, Individual Mobilization Augmentees, and other individually-managed service members), military service obligation or contractual term of service, whichever is later."

DISCUSSION AND CONCLUSIONS:

1.  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 in the Selected Reserve.

2.  The applicant initially enlisted in the ARNG on 24 October 1995.  He voluntarily executed a 3-year extension of this enlistment on 18 October 2001, establishing his new ETS date as 23 October 2004.  He again voluntarily executed a 1-year extension of this enlistment on 2 October 2004, thus establishing a new ETS date (contractual obligation) of 23 October 2005.

3.  He was mobilized and entered active duty on 25 October 2004 and he was honorably REFRAD on 22 December 2005.  His contractual agreement required him to serve in the Selected Reserve until 23 October 2005.  He was involuntarily extended on active duty through 22 December 2005.

4.  The purpose of the RSLSP is to compensate qualified Soldiers held beyond their contractual agreement.  The period claimed must have a start date and end date based on the last contractual period.  The applicant's contractual period ended 23 October 2005.  Therefore, he is only entitled to RSLSP from 24 October 2005 through 22 December 2005, an amount he has already received.

5.  In view of the foregoing evidence, he is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.



      _________________________
                 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)                                         AR20100022982



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ABCMR Record of Proceedings (cont)                                         AR20100022982



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