IN THE CASE OF:	  

		BOARD DATE:	  24 April 2012

		DOCKET NUMBER:  AR20110021292 


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 entitlement to Retroactive Stop Loss Special Pay (RSLSP) for the period 19 March to 26 September 2003.

2.  The applicant states:

	a.  His request for RSLSP was denied twice because item 6 (Reserve Obligation Termination Date) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 September 2003 shows 26 September 2003.  However, this date is incorrect.

	b.  He enlisted in the Army on 16 September 1994 and incurred an 8-year military service obligation (MSO) that ended on 15 September 2002.  He was released from active duty (REFRAD) in 1999 and item 6 of his DD Form 214 for this period correctly shows his MSO date as 15 September 2002.

	c.  Orders, dated 7 February 2003, recalled him to active duty pursuant to the 14 September 2001 Presidential Executive Order 13223.  Military Personnel (MILPER) Message 02-179, dated 13 June 2002, subject:  Stop Loss 4, directed that his MSO be changed to 2031 because he held military occupational specialty (MOS) 98G (Voice Interceptor-Arabic Language) and his MSO date was after 22 February 2002.  MILPER Message 02-242, dated 9 September 2002, subject:  Stop Loss – New 12-Month Soldier Stop Loss Policy, provided procedures to implement the 12-month stop loss policy.  It stated that Soldiers who had their MSO dates changed to 2031 would only be held in the Army for 12 months from their original expiration of term of service (ETS) date and would have 12 months added to their original ETS/MSO.  This meant his MSO date of 15 September 2002 would be changed to 15 September 2003.

	d.  He reentered active duty subject to stop loss on 19 March 2003, but his records continued to show his MSO date as 2031.  After several email messages to the U.S. Army Human Resources Command, he was told he would come off of stop loss in September 2003 and his MSO date would not change until he out-processed.  At that time it would be changed to show 15 September 2002.  He out-processed at Fort Gordon, GA, on 26 September 2003 and his DD Form 214 was issued showing his MSO date as 26 September 2003.

	e.  Although it is clear that his MSO date was 15 September 2002 and that he served on active duty from 19 March to 26 September 2003 only because of stop loss, he was denied RSLSP when he shouldn't have been.

3.  The applicant provides:

* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* three orders
* a memorandum
* nine pages of email
* three pages of his DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* two MILPER messages

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's records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 14 September 1994 and was released from the DEP on 16 January 1995.  He enlisted in the Regular Army (RA) on 17 January 1995 and he held MOS 98G.

3.  He was honorably REFRAD on 16 January 1999 in the rank/grade of sergeant/E-5 and he was transferred to the USAR Control Group (Reinforcement) to complete his MSO.  He completed 4 years of creditable active service and 4 months and 14 days of inactive service.

4.  Item 6 of his DD Form 214 for this period of service contains the entry "2002  09  15."

5.  He was mobilized as a member of the Individual Ready Reserve (IRR) in support of Operation Enduring Freedom (OEF) on 19 March 2003 pursuant to stop loss under the provisions of Title 10, U.S. Code, section 12305.  He was honorably REFRAD on 26 September 2003.  He completed 6 months and 8 days (or 188 days) of active service during this period.

6.  Item 6 of his DD Form 214 for this period of service contains the entry "2003  09  26."  Item 18 of this DD Form 214 does not contain an entry that shows his service for this period was at the convenience of the government.

7.  On 19 May 2011, his request for RSLSP was denied.  The denial email he received stated his claim for RSLSP had been reviewed and was denied as he was ineligible for RSLSP for the period he claimed.

8.  On 14 October 2011, his request for RSLSP reconsideration was denied.  The denial email he received stated that although he had been ordered to active duty on 19 March 2003 as an IRR "recall," he was still within his Reserve MSO date of 26 September 2003 per his DD Form 214.  Service members on active duty within their MSO were not eligible for RSLSP.

9.  Presidential Executive Order 13223, dated 14 September 2001, declared a national emergency by reason of the terrorist attacks on the World Trade Center and the Pentagon and provided authority to the Department of Defense under Title 10, U.S. Code, section 12305, to order any unit and any member of the Ready Reserve not assigned to a unit in the Ready Reserve to active duty for not more than 24 consecutive months.

10.  MILPER Message 02-242, dated 9 September 2002, implemented a 
12-month stop loss policy wherein Soldiers with certain MOS's (to include 98G) who had been recalled to active duty would be retained for a period not to exceed 12 months from their original ETS date and would have 12 months added to their original ETS.  This policy also stated that when Soldiers affected by this policy were REFRAD, item 18 of their DD Forms 214 must contain the statement:  "RETAINED IN SERVICE (specify number of days) FOR CONVENIENCE OF THE GOVERNMENT UNDER THE PROVISIONS OF 10 USC 12305."
11.  All Army Activities Message 277/2009, dated 7 October 2009, subject:  Retroactive Stop Loss Special Pay, announced Army policy and procedures for implementation of RSLSP.  It stated that RSLSP was 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 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 the RC, a contractual ETS in the Selected Reserve; an approved separation date based on an unqualified resignation or REFRAD or, in the case of the RC, an approved request for transfer to the IRR (provided the service member has 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 MSO and/or additional service obligation; and in the case of the ready reserve, (IRR, IMA, and other individually-managed service members), MSO or contractual term of service, whichever is later

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  Chapter 2 contains guidance for the preparation of the DD Form 214.

	a. In item 6, enter the completion date of the statutory MSO incurred by a Soldier on initial enlistment or appointment in the Armed Forces.  A Soldier with no previous military service who enlisted or was appointed on or after 1 June 1984 is required to serve a period of 8 years.  The MSO starts on the date of initial enlistment or appointment in the RA, Army National Guard, or the USAR, to include the DEP.  DEP time is credited in computing this date.  For a Soldier discharged, dismissed, or dropped from the Army rolls, or with an expired MSO, enter "0000  00  00."

	b.  In item 18 for Solders retained past their ETS, enter "RETAINED IN SERVICE (specify number of days) FOR CONVENIENCE OF THE GOVERNMENT PER (authority for retention).



DISCUSSION AND CONCLUSIONS:

1.  The applicant claims he was unfairly denied RSLSP because his DD Form 214 for the period ending 26 September 2003 showed his MSO date as 26 September 2003.

2.  The evidence of record shows the applicant enlisted in the USAR on 14 September 1994, served in the DEP from 14 September 1994 to 16 January 1995, and entered active duty in the RA on 17 January 1995.  He was honorably REFRAD on 16 January 1999.  Item 6 of his DD Form 214 for this period of service correctly lists his MSO as "2002  09  15."

3.  Due to stop loss, he was recalled to active duty in support of OEF as a member of the IRR, entered active duty on 19 March 2003, and was honorably REFRAD on 26 September 2003; a period of 188 days.  Item 6 of his DD Form 214 for this period of service incorrectly listed his MSO as "2003  09  26."  It appears an error was made when completing his DD Form 214 for this period of service.  As he had completed his 8-year MSO on 15 September 2002, the date of his MSO should have been listed as "0000  00  00."  Therefore, he is entitled to correction of his DD Form 214 to show his correct MSO date.

4.  In accordance with regulatory guidance, item 18 of his DD Form 214 for the period ending 26 September 2003 should have reflected that he was held past his ETS for 188 days for the convenience of the government per Title 10, U.S. Code, section 12305.  Therefore, he is entitled to correction of his DD Form 214 to show this entry.

BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 26 September 2003 as follows:

* deleting the current MSO and replacing it with the entry "0000  00  00"
* adding the entry "RETAINED IN SERVICE 188 DAYS FOR CONVENIENCE OF THE GOVERNMENT PER 10 USC 12305"
* auditing his records and paying him any pay, allowances, or RSLSP due as a result of this correction



      ____________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)                                         AR20110021292



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ABCMR Record of Proceedings (cont)                                         AR20110021292



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