IN THE CASE OF:	  

		BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110019292 


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, Retroactive Stop Loss Special Pay (RSLSP) for the period 29 April to 22 December 2004.

2.  The applicant states he was ordered to active duty under Title 10, United States Code (10 USC), on 7 December 2003.  His scheduled expiration of term of service (ETS) was 29 April 2004; however, he was involuntarily extended on active duty for 238 days (until 22 December 2004).

	a.  He reenlisted on 23 December 2004 and received a bonus of $7,500. However, the bonus was for the three years beginning 23 December 2004.

	b.  The Stop Loss Board denied his application for RSLSP on 1 July 2010. The reason provided was that "bonus recipients are ineligible if the bonus was received after the stop loss period that is being claimed."  He adds there was no reference or other explanation as to why his RSLSP has anything to do with his reenlistment.

	c.  He consulted with the Oklahoma Army National Guard (ARNG) Inspector General on the matter and was advised to appeal the decision to the Army Board for Correction of Military Records (ABCMR).

3.  The applicant provides, in support of his application, copies of his enlistment, reenlistment, and separation documents.


CONSIDERATION OF EVIDENCE:

1.  A DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows the applicant enlisted in the Army National Guard of the United States (ARNGUS) for a period of 8 years on 30 April 1996.  Upon completion of initial active duty for training, he was awarded military occupational specialty 62J (General Construction Equipment Operator).

2.  On 7 December 2003, the applicant was ordered to active duty in support of Operation Iraqi Freedom in accordance with 10 USC, section 12302. 

3.  He was promoted to sergeant (SGT)/pay grade E-5 with a date of rank (DOR) of 3 December 2003.

4.  A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) shows the applicant extended the period of his enlistment in the ARNGUS for a period of
3 years on 23 December 2004.  Item 8 (Provisions and Computation of This Extension) shows "I am eligible for and accept a retention bonus" and the applicant's initials.

5.  A DD Form 214 (Certificate of Release or Discharge From Active Duty) shows the applicant entered active duty as a member of the ARNG on 7 December 2003, was honorably released from active duty on 28 March 2005 based on completion of required active service, and transferred to his ARNG unit.

6.  In the processing of this case, an advisory opinion was obtained from the Program Manager, RSLSP, Office of the Deputy Chief of Staff, G-1, Pentagon, Washington, DC.
	
   a.  The advisory official notes the applicant submitted a claim for nine months RSLSP (for the period 30 April to 23 December 2004).
   
	b.  He was promoted to SGT (E-5) on 3 December 2003 and incurred a
1-year active duty service obligation.
   
   c.  He reenlisted in the ARNGUS on 23 December for a period of 3 years and received a reenlistment bonus subsequent to his "stop loss" period.
   
	d.  The advisory official found the applicant to be ineligible for RSLSP because a Soldier must have been held involuntarily on active duty beyond an established contractual obligation.

7.  On 7 November 2011, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity to submit comments or a rebuttal.  To date, the applicant has not provided a response.

8.  All Army Activities (ALARACT) message 277/2009, dated 7 October 2009, Subject:  Retroactive Stop Loss Special Pay, announced Army policy and procedures for implementation of retroactive stop loss special pay.  It shows that stop loss special pay is for military members under the jurisdiction of the Secretary of the Army while serving on active duty anytime from 11 September 2001 to 30 September 2009.  Effective 21 October 2009, eligible service members will be paid $500 for each month or portion of a month retained on active duty past their contractual ETS.  The message also provided instruction on the process and documentation to support a claim.

9.  U.S. Department of Defense, Office of the Assistance Secretary of Defense (Public Affairs), News Release Number 820-09, dated 21 October 2009, announced the Services' implementation plans to provide retroactive stop loss special pay.  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 also shows that Section 8108 of the 2010 Defense Department Appropriations Act, effective 19 December 2009, contained provisions that modified eligibility for retroactive stop loss special pay.  It shows that "stop-lossed" service members who voluntarily reenlisted or extended their service, and received a bonus for such reenlistment or extension of service, are no longer eligible to receive retroactive stop loss special pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should receive nine months of RSLSP for the period 24 April through 23 December 2004 because he was in a "stop loss" status during that period, which was before he voluntarily extended the period of his initial enlistment.

2.  Records show the applicant enlisted in the ARNGUS for a period of 8 years on 30 April 1996.  He was ordered to active duty on 7 December 2003 and appears to have been in a "stop loss" status beginning 30 April 2004.  However, the evidence of record shows the applicant was promoted to SGT (E-5) with a DOR of 3 December 2003 and he incurred a 1-year active duty service obligation (i.e., through 2 December 2004).

3.  On 23 December 2004, the applicant extended the period of his enlistment in the ARNGUS for a period of 3 years and he received a reenlistment bonus.
4.  The initial implementing guidance for RSLSP issued by the Department of the Army on 7 October 2009 indicated the applicant was eligible for this special pay.  However, clarifying guidance by the Department of Defense on 21 October 2009 shows the 2010 Defense Department Appropriations Act contained provisions that modified eligibility for RSLSP.  Specifically, that "stop-lossed" service members who voluntarily extended their service or reenlisted and received a bonus were no longer eligible to receive RSLSP.

5.  Therefore, based on the available evidence, there is no basis for granting the requested relief.

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)                                         AR20110019292



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ABCMR Record of Proceedings (cont)                                         AR20110019292



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