IN THE CASE OF:	  

		BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20120017752 


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 payment of Retroactive Stop Loss Special Pay (RASLSP) for the period 16 May 2004 to 15 August 2004.

2.  The applicant states his original expiration of term of service (ETS) was
15 May 2004.  That was the end of his 3-year active duty service obligation.  However, while deployed, he was extended to November 2005 under the Stop Loss Program.  He was told he would have to wait 90 days after deployment before he could be separated.  He requested the extension be changed to
15 August 2004 because that would be 90 days after his return from deployment.  He goes on to state he applied for RASLSP, but the RASLSP office denied his request because he could not produce a document that explicitly stated he was stop-lossed or that he was denied retirement or reassignment.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 August 2004
* a Memorandum for Record (MFR), dated 5 May 2004, requesting his ETS date be changed to 15 August 2004
* copies of emails from the RASLSP office denying his request
* All Army Activities (ALARACT) message 277/2009, subject:  RASLSP, dated 7 October 2009
* a copy of a response to a congressional inquiry from the Office of the Deputy Chief of Staff, G-1, dated 22 August 2011


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 was appointed as a U.S. Army Reserve (USAR) second lieutenant on 12 May 2001.  He was ordered to active duty on 15 May 2001 for a period of 3 years.  He served as a Gold Bar Recruiter from May until October 2001 and then attended the Infantry Officer Basic Course at Fort Benning, GA before being assigned to the 2nd Battalion, 505th Parachute Infantry Regiment at Fort Bragg, NC for his first and only duty assignment.

3.  He was promoted to first lieutenant on 2 December 2002 and he was deployed to Afghanistan from 17 January to 24 August 2003 in support of Operation Enduring Freedom.  He deployed to Iraq in support of Operation Iraqi Freedom during the period 17 January to 15 May 2004.

4.  On 5 May 2004, while deployed, the applicant submitted an MFR to the U.S. Army Human Resources Command (HRC) requesting his ETS date be changed from 14 November 2005 to 15 August 2004, which was outside of the 90-day window established by the Stop Loss Program.  He went on to state his original ETS date of 15 May 2004 was extended to 14 November 2005 under the Stop Loss Program because his unit was a Stop Loss/Stop Move unit and that the change would allow him the 90 days of stabilization after return from his current mobilization.  He does not provide and the records do not contain a response to the MFR.

5.  The applicant received a change of rater officer evaluation report on 19 July 2004 wherein his rater (company commander) indicated the applicant’s leadership would be sorely missed and his senior rater (battalion commander) indicated the applicant had chosen to pursue an academic interest outside of the military and his leadership and professionalism would be missed.


6.  On 15 August 2004, the applicant was honorably released from active duty due to completion of required active service.  He completed 3 years, 3 months, and 1 day of net active service and he was transferred to the USAR Control Group (Reinforcement).

7.  The emails provided by the applicant from HRC indicate that in reviewing his application for RASLSP, documentation denying his request to be released from the Army could not be located.  His request was denied by HRC on
17 February 2011.

8.  The response to a congressional inquiry from the Office of the Deputy Chief of Staff, G-1, provided by the applicant, informs the applicant’s congressional representative that he was ineligible for RASLSP because those serving in a voluntary indefinite status must provide a memorandum documenting denial of a request for or involuntary amendment of retirement/resignation to the Individual Ready Reserve (IRR).

9.  A review of the applicant’s Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF), fails to show the applicant was serving in a voluntary indefinite status.

10.  The applicant was honorably discharged from the USAR on 12 April 2007.

11.  ALARACT message 277/2009, dated 7 October 2009, announced Army policy and procedures for implementing the RASLSP.  It states "RASLSP is 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, release from active duty, or approved voluntary retirement was involuntarily suspended by authority of either Title 10, U.S. Code, section 123 or section 12305, (commonly known as Stop Loss Authority).  This special pay is specifically authorized to be claimed retroactively as provided in this message.  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:

	a.  contractual ETS or, in the case of the RC, a contractual ETS in the Selected Reserve;

	b.  an approved separation date based on unqualified resignation or REFRAD or, in the case of the RC, 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);

	c.  approved retirement based on length of service;

	d.  approved memorandum of resignation for officers serving beyond their military service obligation and/or additional service obligation; and

	e.  in the case of the Ready Reserve, 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 RASLSP policy authorizes eligible service members a payment of $500.00 per month or a portion of the month of active duty past their contractual ETS date.

2.  The applicant was ordered to active duty on 15 May 2001 for a period of
3 years that would have made his ETS 14 May 2004.

3.  The MFR submitted by the applicant to HRC on 5 May 2004 clearly indicates he had an ETS of 15 May 2004 that was extended to 14 November 2005 under the Stop Loss/Stop Move directive and he requested it be changed to 15 August 2004, which would meet the 90-day requirement to allow for transition processing after deployment.  The applicant submitted the MFR while deployed to Iraq.

4.  While there are no documents in his official record that show he was extended under the Stop Loss/Stop Move directive or that he was denied separation on his scheduled ETS date of 14 May 2004, there is evidence that shows he served beyond his service remaining requirements in an imminent danger area; therefore, he should be paid RASLSP for the period of 15 May 2004 to 15 August 2004.

5.  It should also be noted that the applicant served beyond his 3-year active duty service obligation in an imminent danger area and in all likelihood did as he was told at the time, to move with his unit and he would be separated when he returned from deployment.  It appears based on the MFR he submitted to HRC that he simply wanted to shorten the involuntary Stop Loss extension imposed upon him from November 2005 to August 2004, which amounted to 90 days after his scheduled ETS and return to his home station.


6.  Additionally, the RASLSP was not announced until October 2009 and it is not reasonable that the applicant could obtain the statements being required of him at this time.

7.  Accordingly, as a matter of equity, the applicant should be granted the benefit of any doubt and paid RASLSP for the period 15 May to 15 August 2004. 

BOARD VOTE:

____x___  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 showing he was eligible for and paying him RASLSP for the period 15 May to
15 August 2004.



      __________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)                                         AR20120017752



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120017752



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1