IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110004564


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 she be paid Retroactive Stop Loss Special Pay (RSLSP).

2.  The applicant states she is a member of the South Dakota Army National Guard (SDARNG).  She had an expiration term of service (ETS) date of 9 March 2003, and:

* she was mobilized on 30 January 2003
* she was "stop-lossed"; her ETS date was changed to 4 December "2031"
* she was released from active duty (REFRAD) on 22 January 2005
* she reenlisted in the SDARNG for 3 years on 19 February 2005
* she received a Selected Reserve Incentive Program (SRIP) bonus of $7,500

3.  The applicant states she submitted a request for RSLSP on 13 November 2009 and was denied based on the 2010 National Defense Authorization Act (NDAA), enacted on 19 December 2009.  She argues that she should not be held to the provisions of the 2010 NDAA when she made application for RSLSP a month prior to its enactment.

4.  The applicant provides:

* DA Form 1559 (Inspector General Action Request (IGAR))
* a chronology of events
* emails
* a News Release on "stop-loss"
* DA Form 4187 (Personnel Action)
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment)
* DD Form 4 (Enlistment/Reenlistment Document)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 1966 (Record of Military Processing – Armed Forces of the United States)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Response to Congressional Correspondence 

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Staff Sergeant (SSG)/E-6 in the SDARNG.  Her records show:

* initial enlistment – 10 March 1999 for 4 years in SDARNG and 4 years in U.S. Army Reserve (USAR)
* initial ETS date – 09 March 2003

2.  Orders 029-385, Office of The Adjutant General, SDARNG, Rapid City, SD, dated 29 January 2003, ordered the applicant to active duty (AD) in support of Operation Enduring Freedom (OEF) effective 30 January 2003 for a 1-year period under the provisions of Title 10 U.S. Code, Section 12302 (10 USC §12302).

3.  The applicant's records contain a DD Form 214 which shows:

* date entered AD – 2003/01/30 (30 January 2003)
* REFRAD – 2005/01/22 (22 January 2005)
* ordered to AD in support of OEF in accordance with 10 USC §12302
* service at Ellsworth AFB (Air Force Base), SD from 20030130-20050122
* transfer to her SDARNG unit

4.  The applicant was "stop-lossed" from 10 March 2003 through 22 January 2005, a period of 1 year, 10 months, and 13 days (685 days).

5.  The applicant provided a DA Form 4187, dated 17 February 2005, showing she requested an involuntary extension of her ETS date to 90 days after her REFRAD, making her new ETS date 22 April 2005.



6.  The applicant's records contain a DA Form 4836, dated 19 February 2005, showing she extended her ETS date of 22 April 2005 by 3 years, making her new ETS date 22 April 2008.  It also shows she was eligible for an extension bonus of $7,500.

7.  The applicant's records contain a DD Form 1966 showing, on 26 November 2008, she reenlisted for 6 years, making her new ETS date 25 November 2014.

8.  On 6 June 2009, by DA Form 4836, the applicant extended her ETS date an additional year, making her new ETS date 25 November 2015.

9.  The applicant states she submitted a RSLSP packet on 13 November 2009.  The packet was received and a stop-loss payment case number – RSL00015682 – was established.  However, on 8 March 2010, she was informed by email that she was not entitled to RSLSP because she had received a bonus in 2005.  The response cited the 2010 National Defense Appropriations Act (NDAA) passed on 19 December 2009.

10.  The applicant submitted an IGAR on 4 May 2010.  She requested payment of RSLSP arguing her request had been submitted prior to the enactment of the 2010 NDAA, and stating that other Soldiers similarly situated were paid RSLSP.  There is no indication of how the IGAR was resolved.

11.  On 28 September 2010, the Chief, Compensation and Entitlements Division, Headquarters, Department of the Army G-1 responded to the applicant's Representative in Congress stating the applicant was not entitled to RSLSP because she had received a reenlistment bonus.

12.  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, USC, §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.



13.  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, had their enlistment or period of obligated service involuntarily extended or whose established date of separation, REFRAD, or approved voluntary retirement was involuntarily suspended by authority of either 10 USC §123 or §12305 (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. 

14.  The Supplemental Appropriations Act of 2009, Public Law 111-32, provided in §310:

   a.  RSLSP Compensation to Eligible Claimants – In addition to the amounts appropriated or otherwise made available elsewhere in this Act, $534,400,000 is appropriated to the Department of Defense, to remain available for obligation until expended:  provided, that such funds shall be available to the Secretaries of the military departments only to make payment of claims specified in subsection (b) to members of the Armed Forces, including members of the RC, and former and retired members under the jurisdiction of the Secretary who, at any time during the period beginning on 11 September 2001 and ending on 30 September 2009, served on active duty while the members’ enlistment or period of obligated service was extended, or whose eligibility for retirement was suspended, pursuant to §123 or §12305 of H. R. 2346—13, Title 10 USC, or any other provision of law (commonly referred to as a ‘‘stop-loss authority’’) authorizing the President to extend an enlistment or period of obligated service, or suspend an eligibility for retirement, of a member of the uniformed services in time of war or of national emergency declared by Congress or the President.



   b.  Claims Submission Required – Claims for RSLSP compensation under this section shall be submitted to the Secretary of the Military Department concerned not later than 1 year after the date on which the implementing rules of subsection (d) take effect.  Notwithstanding any other provision of law, the Secretaries of the military departments may not pay claims that are submitted more than 1 year after the date on which the implementing rules of subsection
(d) take effect.

   c.  Payment Amount – The amount to be paid under subsection (a) to or on behalf of an eligible member, retired member, or former member described in such subsection shall be $500 per month for each month or portion of a month during the period specified in such subsection that the member was retained on active duty as a result of application of the stop-loss authority.

   d.  Rulemaking – Not later than 120 days after the date of enactment of this Act, the Secretary of Defense shall issue rules to expedite the payment of claims under subsection (b).

   e.  Treatment of Deceased Members – If an eligible member, retired member, or former member described in subsection (a) dies before the payment required by this section is made, the Secretary concerned shall make the payment in accordance with section 2771 of 10, USC.

   f.  Exclusion of Certain Former Members – A former member of the Armed Forces is not eligible for a payment under this section if the former member was discharged or released from the Armed Forces under other than honorable conditions.

   g.  Relation to Other Stop-Loss Special Pay – A member, retired member, or former member may not receive a payment under this section and stop-loss special pay under section 8116 of the Department of Defense Appropriations Act, 2009 (division C of Public Law 110–329; 122 Stat. 3646) for the same month or portion of a month during which the member was retained on active duty as a result of application of the stop-loss authority.

   h.  Report on Execution – The Secretary of Defense shall provide a report to the congressional defense committees on the implementation of the retroactive stop-loss benefit.  The report shall include the following: the number of claims filed, the number of claims approved, the number of claims denied, the number of 
claims still pending, the amount of funding that has been obligated, the amount of funding still available for this purpose, and the average payment provided.  This report is due 1 year after the date on which the implementing rules of subsection (d) take effect, and every 6 months thereafter until all funding provided for this purpose has been obligated and all submitted claims have been processed.

15.  The 2010 Department of Defense Appropriations Act, Public Law 111-118, in §8108, provided:

	a.  Clarification of RSLSP Authority – Section 310 of the Supplemental Appropriations Act, 2009 (Public Law 111–32; 123 Stat. 1870) is amended.

	b.  Effect of Subsequent Reenlistment on Voluntary Extension of Service.  Members of the Armed Forces, retired members, and former members otherwise are not eligible for a payment under this section if the members:

       (1)  voluntarily reenlisted or extended their service after their enlistment or period of obligated service was extended, or after their eligibility for retirement was suspended, pursuant to a stop-loss authority.

       (2)  received a bonus for such reenlistment or extension of service.

16.  Title 10 USC Chapter 1209 – Active Duty – provides in §12305 (Authority of President to suspend certain laws relating to promotion, retirement, and separation):

   a.  Notwithstanding any other provision of law, during any period members of a reserve component are serving on active duty pursuant to an order to active duty under authority of section 12301, 12302, or 12304 of this title, the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States.

   b.  A suspension made under the authority of subsection (a) shall terminate (1) upon release from active duty of members of the reserve component ordered to active duty under the authority of section 12301, 12302, or 12304 of this title, as the case may be, or (2) at such time as the President determines the circumstances which required the action of ordering members of the reserve component to active duty no longer exist, whichever is earlier.
   
   c.  Upon the termination of a suspension made under the authority of subsection (a) of a provision of law otherwise requiring the separation or retirement of officers on active duty because of age, length of service or length of service in grade, or failure of selection for promotion, the Secretary concerned shall extend by up to 90 days the otherwise required separation or retirement date of any officer covered by the suspended provision whose separation or retirement date, but for the suspension, would have been before the date of the termination of the suspension or within 90 days after the date of such termination [emphasis added].

DISCUSSION AND CONCLUSIONS:

The applicant is not entitled to relief.  The RSLSP provisions were amended before she received RSLSP.  Once the changes, effective 19 December 2009, came into effect, the Army no longer had the authority to make RSLSP payments to Soldiers who received a reenlistment bonus.  The fact that her application pre-dated the implementation of changes to the law is of no consequence; the law made no provisions for grandfathering Soldiers who made application before the date of enactment.

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)                                         AR20110004564



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110004564



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1