IN THE CASE OF:	  

		BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100026857 


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 retroactive payment of stop loss special pay (RSLSP) from 27 June 2004 through 31 January 2005.

2.  He states, in effect, when he submitted his original request for RSLSP he listed the dates as 26 June 2004 through 1 February 2005.  This was an oversight on his part.  He was under the impression that he was to list the date his original contract ended as the start date for stop loss and end of the stop loss period was the start date of his new contract.  His original claim was only for 7 months.  After talking to his case manager, he realized he needed to have the dates as accurate as possible.  He was under no contract during the dates specified, i.e. 27 June 2004 through 31 January 2005.

3.  He also states that he received no bonus during the same said period.  He was held on active duty after his expiration of term of service (ETS).  His contract that ended on 26 June 2004 was a "try one" enlistment contract and he had no bonus associated with it.  Per the regulation and legislation passed, he is eligible for RSLSP for the dates specified.

4.  He provides:

* his National Guard Bureau (NGB) Form 22 (NGB Report of Separation and Record of Service), for the period ending 31 October 2002
* deployment orders, dated 15 June 2004
* 
his release from active duty (REFRAD) orders, dated 30 October 2005
* emails to the RSLSP office and their responses
* his U.S. Army RSLSP Reconsideration Request

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 enlisted in the Idaho ARNG (IDARNG) on 1 August 1991 for a period of 8 years.  He held military occupational specialty 13B (Cannon Crewmember).  On 1 October 1997, he extended his 1991 enlistment in the IDARNG for 3 years.  On 26 June 2003, he reenlisted in the IDARNG for 1 year.

3.  On 15 June 2004, he was ordered to active duty in support of Operation Iraqi Freedom by Orders 114-002, issued by the State of Idaho, Military Division, Boise, ID, dated 15 June 2004.

4.  He entered active duty on 19 June 2004.  He served in Iraq from 28 November 2004 through 26 October 2005.  He was honorably REFRAD on 2 November 2005.

5.  On 1 February 2005, he reenlisted in the IDARNG for 6 years with entitlement to an authorized reenlistment bonus of $15,000.00.

6.  His original application for RSLSP is not available for review with this case.  However, in an email, dated 2 March 2010, an SL Case Manager advised him that Army personnel data records indicated he was a bonus recipient on
1 February 2005.  Due to recent legislation concerning reenlistment bonuses, he was ineligible for RSLSP.  His claim was closed.

7.  On 3 March 2010, he submitted a request for reconsideration of his request for RSLSP for the period 27 June 2004 through 31 January 2005.  In an email, 

dated 14 April 2010, he was advised his reconsideration claim was denied.  He was also advised that he remained ineligible due to a reenlistment bonus he received after his stop loss period.

8.  In an advisory opinion, dated 24 March 2011, from the Office of the Deputy Chief of Staff G-1, the advisory official stated the applicant's RSL claim for the period 27 June 2004 through 1 February 2005 had been reviewed and it had been denied due to the receipt of an incentive bonus.  Legislation signed on 19 December 2009 made bonus recipients ineligible to receive the special pay unless they met one of the following conditions:  break in service, change in Service Component, or intervening enlistment without bonus.  

9.  On 24 March 2010, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

10.  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 (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.

11.  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 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 reenlistment in the IDARNG on 1 February 2005 and received a reenlistment bonus.  Legislation stipulates that anyone who has received an incentive bonus subsequent to their stop loss period is ineligible for the special pay.  Therefore, he is not entitled payment of RSLSP from 27 June 2004 through 31 January 2005.

2.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100026857



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ABCMR Record of Proceedings (cont)                                         AR20100026857



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