BOARD DATE:	  23 October 2012

		DOCKET NUMBER:  AR20120005229 


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, correction of his extension paperwork so that he can receive retroactive stop loss special pay (RSLSP) for his tour in Iraq from 27 March 2003 to 8 June 2004, a little over $7,000.00.

2.  He states:

* He was denied RSLSP because he circled "voluntary" on his extension to cover his Title 10 orders
* He would have been extended until 24 December 2031 if he had not signed voluntarily
* He feels he was coerced into signing his extension or he could have continued to serve until age 70
* If he had not deployed with his unit he would have been charged and jailed for missing movement

3.  He provides the following:

* Self-authored statement
* DA Form 4187 (Personnel Action), dated 22 March 2003
* Orders 329-007, dated 24 November 2004
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 22 March 2003
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 8 June 2004
* Orders 085-118, dated 26 March 2003
* Congressional correspondence

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.  Having had prior service in the U.S. Marine Corps, U.S. Marine Corps Reserve, and the Air National Guard, on 18 September 1992, the applicant enlisted in the Arizona Army National Guard (ARNG).  He remained in the Arizona ARNG for 1 year, 8 months, and 14 days and on 1 June 1994, he was honorably transferred to the U.S. Army Reserve Control Group (Reinforcement).

3.  On 3 August 2001, he enlisted in the Montana ARNG for a period of 1 year, thus establishing his expiration term of service (ETS) date as 2 August 2002.  He held military occupational specialty (MOS) 95B (Military Police). 

4.  On 2 July 2002, he extended his ETS for 1 year establishing a new ETS date of 2 August 2003.

5.  A DA Form 4187, dated 22 March 2003, shows he requested and was approved for an "Adjustment of his ETS."  The form states the following:

	a.  In accordance with (IAW) the ARNG Stop Loss Message 02-004, Soldiers who possess a primary MOS of 95B and who have an ETS date on or after
22 February 2002, will have their ETS dates adjusted to 31 March 2003.

	b.  IAW ARNG Stop Loss Message 03-001, Soldiers who are members of alerted or mobilized units and who are currently retained as a result of skill-based Stop Loss (95B) are now retained for the period of the unit's mobilization plus 90 days.
	c.  My unit has been mobilized for a period of 365 days plus a possible additional year.  The unit's activation date is 27 March 2003.  End date of mobilization will be 26 June 2005.  

	d.  I voluntary (circled)/involuntary extend the current ETS to the end date of my unit's mobilization.  I understand that if I voluntarily extend, my ETS date will be adjusted to 26 June 2005 (DA Form 4836 attached).  I also understand that if I do not voluntarily extend, my ETS date will be adjusted to 24 December 2031.  

6.  On 22 March 2003, he extended his ETS for 1 year and 10 months establishing a new ETS date of 26 June 2005.

7.  Orders 083-006, dated 24 March 2003, show he was promoted to sergeant (SGT)/E-5 with an effective date and a date of rank of 26 March 2003.

8.  Orders 085-118, dated 26 March 2003 and a DD Form 214 show that on       27 March 2003 he was ordered to active duty in support of Operation Enduring Freedom. On 8 June 2004, he was honorably released from active duty and credited with completing 1 year, 2 months, 12 days of active duty service.

9.  On 1 October 2004, he was discharged from the ARNG and assigned to the USAR Control Group (Individual Ready Reserve).  His NGB Form 22 lists the authority and reason for his separation as paragraph 8-27r, National Guard Regulation (NGR) 600-200, "Incompatible Occupation (employment conflict).  

10.  In the processing of this case, on 9 April 2012, an advisory opinion was obtained from the Program Manager, Department of the Army (DA) Office of the Deputy Chief of Staff, G-1.  The DA G-1 representative stated that on
30 December 2004, the applicant submitted a claim for 16 months (27 March 2003 to 8 June 2004) RSLSP, but was determined to be ineligible.  It was determined the applicant was under a contractual obligation during the period claimed.  The DA G-1 representative said the evidence further shows he voluntarily signed both his DA Form 4187 and DA Form 4836.  

11.  The DA G-1 representative stated that with the exception of the congressional reply, there was nothing indicating the applicant's reenlistment was erroneous, defective, or fraudulent.  It was noted that the applicant was promoted to SGT with an effective date of 26 March 2003, and incurred a 1-year service obligation with the promotion.  The DA G-1 representative offered he was told there was a warrant officer sitting with each Soldier prior to having them sign the DA Form 4187 for an extension and a complete explanation was provided to the Soldier.  He opines he was confident that each Soldier knew the impact of accepting the extension or accepting the 2031 ETS.
12.  On 10 April 2012, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity to submit comments or a rebuttal.  On 9 May 2012, he requested a 30-day extension, but no response was received.

13.  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 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.  The message also provided instruction on the process and documentation to support a claim.

14.  U.S. Department of Defense, Office of the Assistant 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.  It also shows that Section 8108 of the 2010 Defense Department Appropriations Act, effective 19 December 2009, contained provisions that modified eligibility for RSLSP.  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 RSLSP.

15.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  The regulation states, in pertinent part, that Soldiers not sooner removed from an active status for another reason will be removed when they reach age 60.

16.  Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program) provides policy and guidance for extending enlistment or reenlistment agreements to meet length of service requirements.  Extensions under this regulation are governed by Title 10, U.S. Code, section 509.  Paragraph 3-1 states that all extensions are voluntary and a Soldier, by signing a completed DA Form 4836, extends the terms of his service, benefits, and contractual provisions of his current enlistment or reenlistment agreement.

17.  Military Personnel Message Number 03-040, Unit Stop Loss Procedures for the Army National Guard, stated enlisted Soldiers projected to separate due to their ETS, but who are being involuntarily retained under Stop Loss because their unit has received alert orders, will have their ETS date changed to 24 December 2031.  It further stated, “These are arbitrary dates that ensure these Soldiers can be readily identified in the data base.”

18.  Army Stop Loss Message #2, Part I (Enlisted Soldiers), Section I (Army Reserve (Ready Reserve)), stated in part, “Soldiers whose current ETS falls between 15 Jan 02 and…will have their ETS changed to 24 Dec 2031…(This is a notional and arbitrary date for tracking purposes and does not constitute the Soldier’s true ETS date).”

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should receive 16 months of RSLSP for the period 27 March 2003 to 8 June 2004 because he was in a "stop loss" status during that period.

2.  On 22 March 2003 he extended his ETS for 1 year and 10 months in the ARNG, thereby establishing a new ETS date of 26 June 2005.  His DA Form 4187 shows he circled the portion indicating that he desired to "voluntary" extend his current ETS to the end date of his unit's mobilization.  The form also indicates he understood if he did not voluntarily extend his ETS date, his ETS would be adjusted to 24 December 2031.  

3.  Based on the above statement, the applicant maintains he was coerced into signing the extension or he would have served until age 70.  The advisory opinion stated a complete explanation was provided by a warrant officer to each Soldier prior to having them sign the DA Form 4187 for an extension.  

4.  Although ARNG Stop Loss Message 02-004 and ARNG Stop Loss Message 03-001 are not available, other Stop Loss messages are available.  Two representative messages, one specifically for ARNG personnel and one for U.S. Army Reserve personnel, both state that enlisted Soldiers being involuntarily retained under Stop Loss would have their ETS date changed to 24 December 2031.  Both of those representative messages stated that date was an arbitrary, notional date for tracking purposes so Soldiers could be readily identified in the data base.

5.  The applicant was not singled out into voluntarily extending with an “unrealistic” Stop Loss extension date.  That extension date applied to ALL Reserve Component Soldiers affected by Stop Loss.

6.  The evidence of record shows he executed a DA Form 4836 voluntary extension of his enlistment contract in the ARNG.  Therefore, he was never involuntarily extended and as such, he was properly denied RSLSP.  To grant the applicant's request would be giving him a benefit not afforded to others in the same situation.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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 probably error or injustice.  Therefore, the Board determined 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)                                         AR20120005229





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ABCMR Record of Proceedings (cont)                                         AR20120005229



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