IN THE CASE OF:	  

		BOARD DATE:	    30 July 2013

		DOCKET NUMBER:  AR20130000577 


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 Deployment Extension Stabilization Pay (DESP).

2.  The applicant states he was told he could not extend his tour of enlistment in the Michigan Army National Guard (MIARNG) for one year in order to receive the DESP.  According to the Army National Guard Instructions (ANGI) 36-101, dated 3 May 2002, in paragraph 2.6, it states he could adjust his length of tour of enlistment from 1 to 6 years.  He was told he could not reenlist for one year and that he had to reenlist for 3 years.  When he reenlisted for 3 years, he could not receive the DESP because he was outside the window of eligibility.  He has spoken with the DESP experts from other organizations and he was told he could collect DESP according to policy and that the unit he is assigned to is being unfair to his situation. 

3.  The applicant provides:

* National Guard Bureau (NGB) Policy Memorandum Number 10-021, dated 1 April 2010, Subject: Revised ARNG DESP Implementation Guidance
* Request for exception to policy
* Extract of ANGI 36-101, dated 3 May 2002
* DESP chart
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the MIARNG on 9 July 1979.  He served through multiple extensions, in a variety of stateside or overseas (mobilization) assignments, and he attained the rank/grade of sergeant first class (SFC)/E-7. 

2.  His records show he executed the following extensions that established his expiration of term of service (ETS) date:

* 6-year extension on 19 September 2003, new ETS date 19 February 2010
* 1-year extension on 14 December 2009, new ETS date 19 February 2011
* 2-year extension on 11 February 2010, new ETS date 19 February 2013

3.  He completed several periods of mobilization/active duty as follows:

* 2 March 2003 through 17 July 2005, in support of Operation Iraqi Freedom, Title 10, U.S. Code, section 12302
* 18 July 2005 through 7 October 2006, in support of Operation Iraqi Freedom, Title 10, U.S. Code, section 12302
* 8 October 2006 through 15 September 2010, unclear reason or statutory authority
* 16 September 2010 through 15 October 2011, in support of Operation New Dawn, Title 10, U.S. Code, section 12302
* 16 October 2011 through 31 October 2012, unclear reason or statutory authority; retired by reason of sufficient service for retirement

4.  On 14 December 2009, by memorandum, an officer of the applicant's battalion submitted a request for exception to policy.  The officer requested an exception to policy in relation to extending Active Guard Reserve (AGR) Soldiers for not less than 3 years be granted for the applicant.  The purpose of this exception was to secure the applicant's eligibility for DESP during the unit's upcoming deployment.  His current ETS date was 19 February 2010.  A 12-month extension would put his ETS date in the M-180 to M+455 eligibility zone to collect the DESP.  

5.  It is unclear when a response was made to this request. 

6.  The applicant retired on 31 October 2012 and he was placed on the Retired List in his retired rank/grade of SFC/E-7. 

7.  An advisory opinion was obtained on 15 May 2013 from the NGB in the processing of this case.  An NGB official recommended disapproval of the applicant's request because he did not meet the criteria to receive the DESP.  He extended his ETS to put himself into the DESP window but was not eligible for the DESP when it was published.  He added:

	a.  NGB Policy Memorandum Number 09-020 (ARNG DESP Implementation Guidance for Units Mobilizing after 1 September 2009 Without Stop Loss) outlines the requirements for a Soldier to qualify for DESP:

		(1)  The ETS date range must be between 180 days prior to unit's mobilization date to 365 days after the unit's mobilization date, according to the NGB Policy Memo Number 09-020, paragraph 5a.

		(2)  The applicant's ETS date was 19 February 2010; this date is earlier than 180 days prior to unit mobilization date of 16 September 2010; therefore, he is not eligible for DESP.

	b.  NGB Policy Memorandum 09-022 (ARNG Mobilization and Deployment Guidance for Units Mobilizing after September 2009 Without Stop Loss) categorizes Soldiers based on their ETS dates in order to provide guidance on deployment policy and DESP eligibility.

		(1)  The applicant falls into the category detailed in NGB Memo Number 09-022, paragraph 6b(5).  This paragraph pertains to Soldiers with ETS dates more than 180 days prior to the unit's mobilization.  They may choose to extend their ETS to deploy, but DESP does not apply to this group of Soldiers.

		(2)  The applicant extended his ETS date twice; the first extension was for one year to put his ETS date into the DESP eligibility range and the second extension was for two years beyond that.  For this reason, he believes he is eligible for DESP.  Although he extended his ETS date to a date within the DESP eligibility range, at the time the DESP policy was established, his ETS date was not within the time range for DESP eligibility.  

8.  The applicant was provided with a copy of this advisory opinion but he did not respond. 

9.  NGB Policy Memorandum, dated 1 April 2010, provides revised implementation guidance for DESP, which is a form of Assignment Incentive Pay (AlP), for ARNG units mobilizing on or after 1 April 2010 without Stop Loss.  The DESP program is designed to stabilize ARNG units as early as possible during the pre-mobilization period.  This program will improve unit readiness by reducing attrition and supporting cross-leveling well in advance of the unit's mobilization.

	a.  Soldiers and officers whose service obligation expires within the period beginning 180 days prior to the unit's projected mobilization date and ending 365 days after the unit's mobilization date (M-180 through M+365) are eligible for DESP.  Active Guard Reserve, Military Technicians, and service members in the Inactive National Guard who return to active status are authorized to receive DESP.  

	b.  DESP will be paid in monthly installments for each month the Soldier or officer is mobilized, beginning after the mobilization date, but not to exceed 12 payments.  The specific amounts authorized and corresponding timelines for initiating a DESP contract are listed.  Eligible Soldiers assigned to a mobilizing unit who contract for DESP from M-365 to M-180 will be paid $500 a month after the mobilization date.  Soldiers who contract for DESP between M-179 to M-90 will be paid $350 a month after the mobilization date.

DISCUSSION AND CONCLUSIONS:

1.  In order for the applicant to be eligible for DESP, his ETS date range must have been between 180 days prior to the unit's mobilization date and 365 days after the unit's mobilization date.  The applicant's ETS date was 19 February 2010 and he was mobilized and entered active duty on 16 September 2010.  The mobilization date is earlier than 180 days prior to unit mobilization date of 
16 September 2010; therefore, the applicant is not eligible for DESP.

2.  The applicant's ETS date was more than 180 days prior to the unit's mobilization.  He had the choice to extend his ETS to deploy, but DESP does not apply to this group of Soldiers.  He extended his ETS twice.  His first extension was for 1 year, on 14 December 2009, and put his ETS date into the DESP eligibility range, and his second extension was for 2 years on 11 February 2010, beyond that.  Although he extended his ETS date to a date within the DESP eligibility range, at the time the DESP policy was established, his ETS date was not within the time range for DESP eligibility.  

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)                                         AR20130000577





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ABCMR Record of Proceedings (cont)                                         AR20130000577



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