IN THE CASE OF:	  

		BOARD DATE:  5 July 2012

		DOCKET NUMBER:  AR20120000273 


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 Retroactive Stop Loss Special Pay (RSLSP) for the period December 2003 to January 2005.

2.  The applicant states he signed a 1-year contract to serve in the 1st Battalion, 107th Field Artillery, Pennsylvania Army National Guard (PAARNG) on 14 April 2003.

   a.  He was ordered to active duty on 18 December 2003.
   
   b.  He was placed in a Stop Loss status, served in Iraq, and was honorably released from active duty (REFRAD) on 30 January 2005.

3.  The applicant provides, in support of his application, copies of his Personnel Qualification Record, active duty orders, DD Form 214 (Certificate of Release or Discharge from Active Duty), and Stop Loss documents.

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 enlisted in the U.S. Army Reserve (USAR) on 22 December 1989 for a period of 8 years.  He then enlisted in the Army National Guard of the United States (ARNGUS) and PAARNG and served from 15 December 1990 to 20 August 1992.

3.  He had a break in service from 21 August 1992 through 13 April 2003.

4.  A DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows the applicant enlisted in the ARNGUS and PAARNG on
14 April 2003 for a period of 5 years and 16 weeks.

5.  A National Guard Bureau (NGB) Form 21 (Annex A to DD Form 4 - Enlistment/Reenlistment - ARNG) shows the applicant enlisted for the "Try One in the Guard" option.  It also shows he would be required to maintain satisfactory participation in the Ready Reserve for the entire period of service stipulated on the DD Form 4 and that the minimum period on active unit status was one year.

6.  On 23 August 2003, he completed training in military occupational specialty 13B (Cannon Crewmember).

7.  The applicant was ordered to active duty as a member of his unit for a period of 730 days on 18 December 2003.  He served in Iraq from 8 February 2004 to 21 January 2005.

8.  A DD Form 214 shows the applicant entered active duty as a member of the ARNG on 18 December 2003, was honorably REFRAD on 30 January 2005 based on completion of required active service, and transferred to an ARNG unit.  It also shows in item 6 (Reserve Obligation Termination Date) that his military service obligation (MSO) ended on 14 August 2008.

9.  A DA Form 4187 (Personnel Action), dated 10 February 2005, subject:  Reestablishment of ETS (Expiration of Term of Service) Due to Stop Loss, shows the applicant was REFRAD on 30 January 2005 and his ETS was established as 30 April 2005.

10.  The applicant was honorably discharged from the ARNGUS and PAARNG on 30 April 2005 and transferred to the USAR Control Group (Annual Training).
11.  He enlisted in the ARNGUS and PAARNG on 23 March 2006 for a period of 2 years and 21 weeks.  He was honorably discharged on 14 August 2008.

12.  In support of his application the applicant provides a copy of an Office of the Adjutant General, Fort Indiantown Gap, Annville, Pennsylvania memorandum, dated 23 November 2011.  It shows the Director, Office of Policy and Legislative Affairs, PAARNG, informed Representative Joe W---, United States Congress, that he had determined the applicant was in a Stop Loss status from 14 April 2004 to 30 January 2005.  However, since the RSLSP is a Department of Defense program, the applicant was advised to contact the ABCMR.

13.  In the processing of this case, an advisory opinion was obtained from the Program Manager (PM), RSLSP, Office of the Deputy Chief of Staff, G-1, Pentagon, Washington, DC.
	
   a.  The advisory official notes that the applicant has submitted a claim for     14 months RSLSP for the period 18 December 2003 to 31 January 2005. However, his stop loss period was from 14 April 2004 to 30 January 2005.
   
   b.  He noted the PAARNG has determined that the applicant is eligible for nine months Stop Loss pay.  However, RSLSP is payable for any month or portion of a month held beyond a contractual obligation.  Thus, the legislation requires that the eligible period be rounded up to 10 months.
   
   c.  The advisory official notes that the applicant made no election to enter the Individual Ready Reserve (IRR) either prior to or after his mobilization.  He opines that due to events and circumstances, it is possible the applicant was not offered the opportunity to complete his MSO in the IRR.
   
	d.  The advisory official found the "Try One in the Guard" option appears to be in conflict with Army Regulation 601-210 (Active and Reserve Components Enlistment Program).  However, since the "Try One in the Guard" option was commonly used as a recruiting tool, it is reasonable to recognize this as the applicant's contractual obligation.

   e.  Accordingly, given the facts and circumstances, the RSLSP PM will reverse the applicant's denied claim and submit it to DFAS for payment of the		 10 months between his "Try One in the Guard" ETS (13 April 2004) and REFRAD (30 January 2005).

14.  On 5 March 2012, 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.
15.  Army Regulation 601-210 governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, USAR, and ARNG for enlistment on or after the effective date of the regulation.  Chapter 3, paragraph 3-15c, provides that prior service applicants who were previously discharged before completing their MSO must enlist in the USAR for a period of whole years that will equal or exceed the unfulfilled portion of the previously incurred MSO.

16.  All Army Activities (ALARACT) message 277, dated 7 October 2009, Subject:  Retroactive Stop Loss Special Pay, announced Army policy and procedures for implementation of RSLSP.  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.  

17.  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 RSLSP.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should receive 14 months of RSLSP for the period 18 December 2003 to 31 January 2005 because he was in a stop loss status during that period.

2.  Records shows the applicant enlisted in the ARNGUS and PAARNG on
14 April 2003 for a period of 5 years and 16 weeks.  He also contractually agreed to the "Try One in the Guard" option that, in effect, established a 1-year active unit (Ready Reserve) service obligation (through 13 April 2004).

3.  On 18 December 2003, he was ordered to active duty with his unit and he served on active duty through 30 January 2005.

4.  The evidence of record shows that the "Try One in the Guard" option appears to be in conflict with Army Regulation 601-210.  However, the "Try One in the Guard" option was commonly used as a recruiting tool.  Thus, it would be reasonable to recognize the applicant's contractual agreement and authorize RSLSP for the period 14 April 2004 through 30 January 2005.
5.  Therefore, based on the available evidence, it would be appropriate to authorize the payment of ten (10) months RSLSP.

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 by authorizing 10 months of RSLSP for the period 14 April 2004 through 30 January 2005.

2.  As a result of this correction, the Defense Finance and Accounting Service shall be notified of the Board's determination and, if payment has not been made, then DFAS shall pay the applicant all RSLSP less any withholdings and/or deductions that are due as a result of this correction.

3.  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 14 months RSLSP (for the period 18 December 2003 through 31 January 2005).




      _______ _   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)                                         AR20120000273



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ABCMR Record of Proceedings (cont)                                         AR20120000273



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