BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110006182 


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, in effect, payment of retroactive stop loss special pay (RSLSP).

2.  She states her approved retirement was revoked due to stop loss necessitating her reenlistment in order to have an identification (ID) card.  She adds she was denied RSLSP because she had over 15 years of service at the time requiring her reenlistment to be for an indefinite period.

3.  The applicant provides: 

* her DD Form 4 (Enlistment/Reenlistment Document) for her 2 July 1997 
6-year reenlistment
* Headquarters, 101st Airborne Division and Fort Bragg Orders 46-723
* a Meritorious Service Medal certificate
* Headquarters, 101st Airborne Division and Fort Bragg Orders 057-0089
* a DA Form 3340-R (Request for Reenlistment or Extension in the Regular Army)
* her DD Form 4 for her 1 July 2003 reenlistment for an indefinite period
* Installation Management Agency, Korea Region Office Orders 034-0004
* Installation Management Agency, Korea Region Office Orders 034-0005
* Headquarters, 101st Airborne Division and Fort Bragg Orders 238-700
* RSLSP denial email
* her DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a photocopy of Military Personnel (MILPER) Message 03-101

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she enlisted in the Regular Army on 14 June 1983.  She served continuously through reenlistments.  The highest rank/pay grade she held was sergeant first class/E-7.

2.  On 2 July 1997, she executed a reenlistment for a period of 6 years establishing her expiration term of service (ETS) as 1 July 2003.

3.  She had an approved retirement for 30 June 2003. 

4.  Headquarters, 101st Airborne Division and Fort Bragg Orders 46-723, dated 15 February 2003, show the unit to which she was assigned was ordered to deploy on or about 1 March 2003 for a period of 179 days with possible extension of up to 365 days.

5.  Headquarters, 101st Airborne Division and Fort Bragg Orders 57-0089, dated 26 February 2003, revoked Orders 270-0021 pertaining to her retirement.  The "Authority" line on the orders show "MILPER MESSAGE 03-101, 24 FEB 2003."

6.  A review of her records revealed no evidence she was involuntarily extended due to stop loss.

7.  A DA Form 3340-R (Request for Reenlistment or Extension in the Regular Army) shows she requested reenlistment and that her request was approved on 1 July 2003.

8.  On 1 July 2003, she executed a reenlistment for an indefinite period.  The DD Form 4 for this reenlistment shows she had completed more than 20 years of active service at the time she executed her reenlistment.

9.  Orders show she was assigned to serve in Korea beginning in November 2003.

10.   Her DD Form 214 shows she was retired from active duty on 30 June 2005 for sufficient service for retirement after completing 22 years and 17 days of creditable active service.

11.  She provided a copy of an email addressed to her indicating her request for RSLSP was being denied because she was serving in an indefinite status and she had provided no documentary proof a release from active duty had been denied.
12.  In the processing of this case an advisory opinion was obtained from the Headquarters, Department of the Army (DA) Office of the Deputy Chief of Staff, G-1.  DA G-1 indicated the applicant had submitted a claim for RSLSP (1 June 2003 to 1 July 2005).  Her claim was denied because she was under contract during the period claimed.  DA G-1 further indicated eligibility for RSLSP required that a Soldier have been involuntarily retained on active duty beyond an established contractual obligation or a request to retire or separate.  DA G-1 indicated she signed a reenlistment contract (DD Form 4) on 1 July 2003 for an indefinite term of service and was subsequently reassigned to Korea.  That enlistment contract was considered a voluntary action and not eligible for stop loss special pay.  DA G-1 further indicated there was no evidence that her reenlistment was found to be erroneous or defective by an investigative body.

13.  DA G-1 concluded by indicating the applicant stated she was required to reenlist in order to keep her ID card.  DA G-1 stated that MILPER Message
03-101 specifically stated that Soldiers who were affected by stop loss would continue to receive pay and allowances without interruption until retired/released from active duty/discharged.  It further indicated that Soldiers (and family members) who were pending voluntary separation and became affected by stop loss would have ID cards issued for 1 year from the effective date of stop loss.

14.  The applicant was furnished a copy of the advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal.  In her response, she stated she still disagreed with the decision and she would not have reenlisted on 1 July 2003 since she already had an approved retirement for 30 June 2003.  She states she received a deployment order on 15 February 2003 which stated that she would be in that status for 365 days.  She states her reenlistment extension should have been checked "extended her reenlistment" for "stop loss."  She states everyone else was already deployed and they did her wrong.  She continues by stating she had to reenlist because she was assigned to Korea and feels she is owed for those 365 days.  She states she was put in a hardship because she had already moved her daughter on her retirement orders. 

15.  DA 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 purpose of stop loss is to sustain a force that has trained together to remain a cohesive element throughout the deployment.


16.  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 Reserve Component (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 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; approved retirement based on length of service; approved memorandum of resignation for officers serving beyond their military service obligation; and in the case of Individual Ready Reserve (IRR), Individual Mobilization Augmentees and other individually managed service members, military service obligation or contractual term of service, whichever is later.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  Orders show her retirement was revoked due to stop loss.  However, there is no documentary proof that she was denied retirement.  She contends she had to reenlist to retain her ID card and that this reenlistment was for an indefinite period because she had over 15 years of service.  However, the MILPER Message makes it very clear that Soldiers "stop lossed" would have continued to receive pay and allowances and been issued an ID card for a 1-year period.  The applicant voluntarily reenlisted for an indefinite period.  There is no evidence she completed an involuntary extension due to stop loss after her reenlistment.  To the contrary, the applicant states she reenlisted to meet the service remaining requirement for assignment to Korea.

2.  It is regrettable that she already moved her daughter.  However, the fact is that she voluntarily reenlisted and is not eligible for RSLSP.  As such, she was properly denied RSLSP.  To grant the applicant's request would be giving her 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 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)                                         AR20110006182



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ABCMR Record of Proceedings (cont)                                         AR20110006182



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