BOARD DATE:	  8 November 2012

		DOCKET NUMBER:  AR20120006262 


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 April 2002 through January 2003.

2.  The applicant states:

	a.  On 10 September 2010, he submitted a request for RSLSP on the grounds that his eligibility for retirement was suspended pursuant to Stop Loss while he was serving on active duty in support of Operation Enduring Freedom (OEF) in 2002, which included deployment to Afghanistan.  On 13 November 2010, he received a request for documentation denying his specific request to be released from the Army and cited the All Army Activities (ALARACT) Message 277/2009 as the authority for the additional information.  His response was that ALARACT Message 277/2009 imposed additional requirements not contained in Section 310 of Public Law 111-31, which authorized RSLSP.

	b.  On 16 December 2010, he received a notice denying his request for RSLSP.  The notice explained that the period claimed was ineligible or the documents submitted did not support his claim.  On 20 December 2010, he submitted a request for reconsideration addressing the ambiguous grounds for denial, and supplying a statement from the 20th Special Forces Group (SFG) former commander, Major General (Retired) JGC.  On 17 May 2011, his request was denied and the denial notice stated he was not eligible for RSLSP as he was under an extension of enlistment that was 1 month past the end of his active duty period on his DD Form 214 (Certificate of Release or Discharge from Active Duty).
	c.  In the denial reconsideration, the Army explained the applicant was under contract for the period claimed as his expiration of term of service (ETS) was 1 month past the end of the mobilization period.  In essence, the Army is taking the position that because he was ineligible for RSLSP under the first path as a service member "whose enlistment or period of obligated service was extended," he was also ineligible under the second path as a service member "whose eligibility for retirement was suspended."  This is clearly not consistent with the intent of Congress, or in the Department of Defense's implementing regulations, and would therefore be arbitrary, or otherwise not in accordance with law.

3.  The applicant provides:

* DD Form 214WS (Worksheet)
* National Guard Bureau (NGB) 23B (ARNG Retirement Points History Statement)
* NGB Form 22 (NGB - Report of Separation and Record of Service)
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment)
* Statement of Support
* two orders
* a memorandum
* fourteen pages of email

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) on 20 August 1982 and he held military occupational specialty (MOS) 11B (Infantryman).

2.  He was honorably released from active duty (REFRAD) on 21 June 1986 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining military service obligation (MSO).  

3.  The DD Form 214 he was issued for this period of service shows he completed 3 years, 10 months, and 2 days of net active service during this period of service.  His MSO was shown as 19 August 1988 (6 years from his enlistment date).

4.  On 12 January 1988, he entered active duty as a member of the USAR for the purpose of attending training.  He was honorably REFRAD on 24 June 1988 in MOS 18B (Special Operations Weapons Sergeant) and assigned to the 11th SFG, Bowling Green, VA.  

5.  The DD Form 214 he was issued for this period of service shows he completed 5 months and 13 days of net active service during this period of service.  His MSO was shown as 19 August 1988.

6.  On 16 July 1988, he reenlisted in the USAR for a period of 6 years.  His ETS was 15 July 1994.

7.  On 2 May 1994, he enlisted in the Virginia Army National Guard (VAARNG) for a period of 6 years.  His new ETS was 1 May 2000.  He was assigned to Company B, 3rd Battalion, 20th SFG, Fort A. P. Hill, VA.  He extended his period of service on an unknown date(s).

8.  He was ordered to active duty in support of OEF as a member his ARNG unit for up to 12 months and he entered active duty on 3 January 2002.

9.  On 3 January 2002, he extended his enlistment in the VAARNG for a period of 1 month.  The DA Form 4836 (Oath of Extension), dated 5 January 2002, shows he was previously granted 3 extensions to his original enlistment in the VAARNG and his ETS was 1 January 2003.  His new ETS was 1 February 2003.

10.  The VAARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 10 April 2002.  This memorandum notified him that he had completed at least 20 years of qualifying service and he would be eligible for retired pay upon application at age 60.

11.  He served in Afghanistan from 8 May to 11 October 2002.

12.  In a memorandum, dated 25 November 2002, from the applicant and addressed as "Memorandum Thru Commander," he stated he reached his voluntary retirement date on 9 April 2002.  He was currently subject to Stop Loss, the unit was scheduled for demobilization on or about 2 January 2003, and he requested to be transferred to the Retired Reserve on 9 April 2003.

13.  He was REFRAD on 2 January 2003 and assigned to Company B, 3rd Battalion, 20th SFG.  The DD Form 214 he was issued for this period of service shows he completed 1 year of net active service during this period of service.

14.  On 9 April 2003, he was honorably discharged from the VAARNG and transferred to the Retired Reserve.  The NGB Form 22 he was issued shows he completed 8 years, 11 months, and 8 days of net Reserve service, had 8 years, 2 months, and 21 days of prior Reserve service, and 3 years, 10 months, and 2 days of prior active Federal service.  His total service for retired pay was 21 years.

15.  On 10 September 2010, he submitted a request for RSLSP for the period 9 April 2002 to 9 April 2003.  On 13 November 2010, his request was denied as there was no documentation to show he requested to be released from the Army and his request was denied.  

16.  On 19 November 2010, he submitted a request for RSLSP reconsideration on the basis that his eligibility for retirement was suspended.  

17.  On 16 December 2010, his request for RSLSP reconsideration was denied.  The denial email he received stated his claim was reviewed and the period claimed was ineligible for RSLSP or the documents provided did not support the period claimed.

18.  The applicant provides a statement of support, dated 1 March 2011, wherein the former 20th SFG commander, MG (Ret) JGC, stated the applicant had served in Company B, 20th SFG, from 1994 until his retirement in April 2003.  He reached his retirement eligibility date in April 2002 and at that time asked his company sergeant major for his 20-year letter.  The applicant's chain of command then counseled him that while he was newly eligible for retirement, he was not able to do so at that time because his eligibility [to retire] was suspended by Stop Loss.  While mobilized, all the Soldiers in Company B were subject to Stop Loss because they were Career Management Field (CMF) 18 (Special Forces).

19.  In the processing of this case, an advisory opinion, dated 9 April 2012, was received from the Program Manager, Office of the Deputy Chief of Staff G-1, Department of the Army.  The advisory official recommended disapproval of the applicant's request for RSLSP and stated:

	a.  The applicant submitted a claim for RSLSP on 10 September 2010 for 13 months, 9 April 2003 to 9 April 2004 [sic].  He was notified on 11 November 2010 that he was ineligible to received RSLSP for the period claimed.

	b.  His reconsideration claim was reviewed and it was determined he was under contract during the period claimed.  He argued that the legislation provides for anyone who has 20 years of qualifying service or served in an MOS that was affected by the Stop Loss/Stop Move messages should be compensated under the RSLSP authority.  Clearly, consideration of a service member's contractual obligation is critical to determine the start and end dates of any claim.  An ETS date earlier than a REFRAD date constitutes a start and an end date.  Soldiers serving in an indefinite status must demonstrate that a request to separate was denied, or an approved request was revoked or amended.  This is a reasonable standard given that many USAR and ARNG members serve many years after receipt of their 20-year letters.

	c.  The implementation guidelines and eligibility rules adopted by the Office of the Secretary of Defense (OSD) and the Services are in accordance with legislative intent.  The applicant seems to ignore the instructions that require them to develop eligibility rules.  The 2009 Defense Supplemental Appropriations Act states "that RSLSP [applies] to eligible claimants….Rulemaking - Not later than 120 days after the date of enactment of this Act, the Secretary of Defense shall issue rules to expedite the payment of claims."  The ALARACT Message he is referencing requires service members to take positive action in the form of a request to separate.  He has not provided documentation that substantiates his claim.

20.  In a response to the advisory opinion, dated 1 May 2012, the applicant stated:

	a.  The advisory opinion is factually inaccurate.  He submitted a claim for RSLSP compensation for the period April 2002 through April 2003.  However, as compensation is only provided for the period on active duty, the claim is for 10 months, April 2002 through January 2003.

	b.  The law provides for two RSLSP paths.  One is for service members whose enlistment or period of obligated service was extended by Stop Loss authority.  The second is for service members whose eligibility for retirement was suspended by Stop Loss.  He is seeking RSLSP under the suspension of retirement path.  The fact that he extended his enlistment would be a key factor if he were seeking RSLSP under the extension of enlistment path.

	c.  He stated that a key eligibility element not addressed in the advisory opinion is how eligibility for compensation may differ based on when a service member reaches retirement eligibility.  Service members who reached retirement eligibility while subject to Stop Loss had limited options to express or document a "positive action."  Some were aware that Stop Loss suspended their retirement eligibility and some were verbally counseled by their chain of command that any written request would be denied.  Therefore, they would not have written evidence of a "positive action."

	d.  He was subject to Stop Loss upon reaching 20 qualifying years of service and he simultaneously became eligible for retirement and had that eligibility suspended.  As evidenced by the statement from MG (Ret) JGC, his chain of command advised him that his eligibility to retire was suspended under Stop Loss.  Therefore, in order to satisfy the positive action of the advisory opinion and the approved retirement of the RSLSP implementing guideline, he would have had to ignore the counseling of his chain of command, formally request retirement knowing it would be denied, or hope the retirement application would first be approved and then denied.  This is an impracticable, if not impossible, standard.

21.  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.

22.  Department of the Army Personnel Policy Guidance for Overseas Contingency Operations, chapter 1, paragraph 3j, states that the authority of the President or his designee to suspend certain laws, regulations, and policies that allow promotion, separation, or retirement is commonly known as Stop Loss when invoked.  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 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.

23.  ALARACT 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 should be paid RSLSP for the period April 2002 through January 2003 because his eligibility for retirement was suspended by Stop Loss.

2.  The evidence of record confirms the applicant was ordered to active duty on 3 January 2002 as a member of his ARNG unit in support of OEF and he was subject to Stop Loss.  He voluntarily extended his enlistment in the ARNG on 5 January 2002 and his ETS was 1 February 2003.  

3.  On 9 April 2002, he had 20 years of qualifying service and was eligible for retired pay upon application at age 60.  On 25 November 2002, he submitted a request to be transferred to the Retired Reserve on 9 April 2003.  On 2 January 2003, he was REFRAD.  On 9 April 2003, he was released from the ARNG and transferred to the Retired Reserve.

4.  His contention that he was counseled by his chain of command that he was newly eligible for retirement, but he was not able to do so because of Stop Loss, is noted.  However, there is no evidence that shows he requested to be released from the ARNG and transferred to the Retired Reserve prior to 2 January 2003 and his request was denied.

5.  The criteria for eligibility for RSLSP required that a Soldier have an ETS date earlier than a REFRAD date or, for Soldiers serving in an indefinite status, that a request to separate was denied, or an approved request was revoked, or amended.  The applicant fits neither of these categories.  His ETS date was after his REFRAD date and he did not have an approved retirement that was involuntarily suspended. 

6.  In view of the foregoing, he is not entitled to 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)                                         AR20120006262





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120006262



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1