BOARD DATE:	  1 December 2011

		DOCKET NUMBER:  AR20110010927 


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, through his Member of Congress, entitlement to Retroactive Stop Loss Special Pay (RSLSP) from 3 May 2003 to 6 December 2004.

2.  The applicant states his original discharge date was 2 May 2003 and he was extended in service through 6 December 2004.

3.  The applicant provides:

* DA Form 2A (Personnel Qualification Record Part 1)
* National Guard Bureau (NGB) Form 22-B-R-E (Approval and Acceptance by Service Representative for Inter-Service Transfer in the Army National Guard)
* Orders 097-430, 1 June 1998 discharge from the Army National Guard (ARNG)
* Orders 04-337-00002, 6 December 2004 discharge from the U.S. Army Reserve (USAR)
* Two letters
* Two pages of a computer email

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he initially enlisted in the California Army National Guard (CAARNG) for 8 years on 13 December 1989.  He was trained in and held military occupational specialty (MOS) 12B (Combat Engineer).
2.  After voluntarily transferring to the Arizona ARNG (AZARNG), he was discharged from the ARNG as an unsatisfactory participant on 30 June 1992 with a general discharge.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training (AT)) to complete his remaining mandatory service obligation (MSO).

3.  His NGB Form 22 (Report of Separation and Record of Service) for this period of service shows he completed 2 years, 6 months, and 18 days of ARNG service and he had an MSO through 12 December 1997 (8 years from his enlistment date).

4.  On 30 September 1994, the U.S. Army Reserve Personnel Center, St. Louis, MO, published Orders C-09-442144 ordering his voluntary transfer from the USAR Control Group (AT) to a troop program unit (TPU), the 489th Combat Support Company, San Bernardino, CA.  The orders listed his expiration of term of service (ETS) date as 12 December 1997.

5.  On 2 June 1995, he was reassigned from the 489th Maintenance Company to the 729th Transportation Company, Fresno, CA, and on 21 October 1995, he was released from his TPU back to the USAR Control Group (AT).

6.  On 18 June 1997, he enlisted in the North Dakota ARNG (NDARNG) for a period of 3 years.  However, he was again discharging him from the ARNG as an unsatisfactory participant on 1 June 1998 with a general discharge.  He was transferred to the USAR Control Group (AT) to complete his remaining MSO.

7.  His NGB Form 22 for this period shows he completed 11 months and 14 days of ARNG service and he had an MSO through 17 June 2000 (3 years from his enlistment date).

8.  On 9 May 2000, the U.S. Army Reserve Personnel Command, St. Louis, MO, published Orders C-05-013069 ordering his voluntary release from the USAR Control Group (Reinforcement) and reassignment to a TPU, the 461st Engineer Company, Fargo, ND, effective 3 May 2000.  The orders listed his ETS as 17 June 2000.

9.  There is no record of a reenlistment or extension subsequent to 17 June 2000 and no record that separation/discharge orders were published to effect his discharge on 17 June 2000.  However, as the applicant contends his ETS was 2 May 2003, he apparently reenlisted for 3 years in conjunction with this assignment.

10.  On 6 February 2002, Headquarters, 96th Regional Support Command, Salt Lake City, UT, published Orders 02-037-002 ordered his reassignment within the command from the 461st Engineer Company, Fargo, ND, to the 367th Engineer Battalion, Duluth, MN, effective 6 February 2002.

11.  On 19 February 2003, he was ordered to active duty in support of Operation Enduring Freedom (OEF).  He subsequently served in Kuwait/Iraq from 20 April 2003 to 13 March 2004.  He was assigned to C Company, 489th Engineer Battalion.  He was honorably released from active duty on 7 April 2004.

12.  On 30 March 2004, Headquarters, 90th Regional Readiness Command, North Little Rock, AR, published Orders 04-090-00067 ordering his reassignment from the 489th Engineer Battalion, Fayetteville, AR, back to the 367th Engineer Battalion, Duluth, MN effective 8 April 2004.  These orders stated that he would remain subject to the Reserve Component unit stop loss policy for 90 days after his release from active duty date.

13.  On 2 December 2004, Headquarters, 88th Regional Readiness Command, Duluth, MN, published Orders 04-337-00002 honorably discharging him from the USAR.  These orders stated "Soldier was held beyond normal discharge date through no fault of the Soldier."

14.  On 31 May 2005, he executed a 1-year enlistment in the MNARNG and on 13 June 2005, he voluntarily transferred to the Wisconsin ARNG (WIARNG).  He was assigned to Company C, 2nd Battalion, 128th Infantry.

15.  On 17 August 2005, he was ordered to active duty in support of Operation Iraqi Freedom.  He subsequently served in Kuwait with Company C, 2nd Battalion, 128th Infantry, from 17 August 2005 to 29 November 2006.  He was honorably released from active duty on 29 November 2006.

16.  He was honorably discharged from the ARNG on 3 March 2007.  The NGB Form 22 he was issued for this period of service shows he completed 2 years of ARNG service and he had no further MSO.

17.  The applicant's Member of Congress provides a letter, dated 14 March 2011, wherein the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff G-1, informed the Member of Congress that the applicant's claim for RSLSP would remain denied until the RSLSP office had evidentiary documentation to substantiate his claim and the applicant could seek further assistance from the Army Board for Correction of Military Records.

18.  Department of the Army personnel policy guidance for overseas contingency operations defines Stop Loss as the authority of the President or his designee to suspend certain laws, regulations, and policies that allow promotion, separation, or retirement.  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.

19.  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 (including RC members) and 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, release from active duty, or approved voluntary retirement was involuntarily suspended by authority of either section 123 or section 12305 of Title 10, U.S. Code (commonly known as Stop Loss Authority).  Effective 21 October 2009, eligible service members would be paid $500.00 for each month or portion of a month retained on active duty past their contractual ETS (for RC service members, a contractual ETS in the Selected Reserve); an approved separation date based on unqualified resignation or release from active duty (for RC service members, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to RSLSP as he was held past his ETS of 2 May 2003 and extended in service through 6 December 2004.

2.  The evidence of record shows the applicant was reassigned to the 461st Engineer Company, Fargo, ND on 3 May 2000.  Although his record is void of a reenlistment document showing he reenlisted past his ETS of 17 June 2000, as the applicant contends his ETS was 2 May 2003, it is reasonable to presume he reenlisted for 3 years in conjunction with this assignment.  If a reenlistment had not occurred he would have been separated from the ARNG on 17 June 2000.
3.  In addition, he was ordered to active duty in support of OEF on 19 February 2003 and he was honorably released from active duty on 7 April 2004 and reassigned back to his USAR unit on 8 April 2004.  The orders reassigning him to his USAR unit stated he would remain subject to the Reserve Component unit Stop Loss policy for 90 days after his release from active duty date.

4.  He was honorably discharged from the USAR on 2 December 2004.  The orders discharging him from the USAR stated he was held beyond his normal discharge date through no fault of his own.

5.  RSLSP is a special pay for military members, including RC members, who, while serving on active duty from 11 September 2001 to 30 September 2008, had their enlistment involuntarily extended.  Effective 21 October 2009, eligible service members would be paid $500.00 for each month or portion of a month retained on active duty past their contractual ETS. 

6.  The evidence of record supports the applicant's claim that he was subject to Stop Loss and held on active duty past his ETS.  In view of the foregoing, his records should be corrected to show he is entitled to RSLSP for the 12 months he was retained on active duty past his ETS, from 3 May 2003 to 7 April 2004.

7.  With respect to his request for entitlement to RSLSP through December 2004, RSLSP is paid only for each month a Soldier is retained on active duty past their ETS.  Therefore, he is not entitled to full relief.

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 to show: 

* he is eligible for Retroactive Stop Loss Special Pay for the period 3 May 2003 through 7 April 2004
* he be paid Retroactive Stop Loss Special Pay for the period 3 May 2003 through 7 April 2004

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 his request for entitlement to RSLSP from 3 May 2003 to 6 December 2004. 



      _______ _  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)                                         AR20110010927





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ABCMR Record of Proceedings (cont)                                         AR20110010927



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