IN THE CASE OF: 

		BOARD DATE:	    20 May 2014

		DOCKET NUMBER:  AR20130011741 


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 7 months of Retroactive Stop Loss Special Pay (RSLSP) for the period 1 October 2008 to 17 April 2009.

2.  The applicant states he was under contract for the U.S. Army Reserve (USAR) in the Active Guard Reserve (AGR) Program in Montgomery, AL, in January 2008 and he was scheduled to separate at his expiration of term of service (ETS) so he could return his family to New York.  He was held beyond his ETS date under the provisions of the Stop Loss Program and sent to Iraq.  He did not return to the United States until February 2009.  He was honorably discharged from the USAR on 17 April 2009, at which time he decided to relocate to New York and joined the New York Army National Guard (NYARNG).

3.  The applicant attests that when he submitted a request for RSLSP, he was paid for the period 3 February through 30 September 2008.  The website would not allow him to be paid for the period 1 October 2008 to 17 April 2009 because anything paid after 30 September 2008 was paid from a different funding source. 
He has attempted to resolve this matter for many years, but the original website and email points of contact have all been shut down.  A representative of the USAR Command G-1 referred him to this Board.

4.  The applicant provides:

* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) for the period ending 17 April 2009
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 Regular Army on 26 February 1993 for a period of 3 years.  On 25 February 1996, he was honorably released from active duty and transferred to the USAR.

3.  The applicant's DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows he reenlisted in the USAR on 8 January 2002 for a period of 6 years, establishing his ETS date as 11 January 2008.

4.  A review of the U.S. Army Human Resources Command (HRC) Integrated Web Services (IWS) database shows that on 24 August 2007 the applicant asked his career manager about the possibility of extending to qualify for a tax-free reenlistment bonus while deployed.  The career manager informed him that as a sergeant first class with over 10 years of service, he must reenlist before his ETS date or risk pay problems while deployed.

5.  926th Engineer Brigade, Montgomery, AL, Orders 323-11, dated 19 November 2007, deployed the applicant to his home station (current permanent duty station) effective 19 February 2008 and to his mobilization station (Camp Shelby, MS) on a temporary change of station (TCS) effective 22 February 2008 in support of Operation Iraqi Freedom (OIF) for a period not to exceed 400 days.  His reporting date to his home station was initially 19 February 2008 but was subsequently amended to 5 March 2008.

6.  The applicant's DA Form 4836, dated 4 January 2008, shows he extended his period of enlistment for an additional 2 months, thereby establishing his new ETS date as 11 March 2008.

7.  On 31 March 2008, his career manager enter the following notes in the HRC IWS database:  "Soldier will not reenlist.  Soldier is currently deployed.  Will go AGR NG [National Guard] after return from deployment."

8.  Camp Shelby Joint Forces Training Center, Camp Shelby, MS, 
Orders 099-570, dated 8 April 2008, ordered the applicant to deploy to Iraq on a TCS in support of OIF effective 1 May 2008 for a period not to exceed the original mobilization orders.

9.  The applicant's DD Form 214 shows he entered active duty as a member of the USAR AGR Program on 25 October 2004 and was honorably discharged on 17 April 2009.  During this period, he served in Iraq from 5 March 2008 through 12 February 2009.

10.  He enlisted in the NYARNG on 18 April 2009 for a period of 6 years.  He is currently serving in the NYARNG in the rank of sergeant first class.

11.  In the processing of this case, an advisory opinion was obtained from the RSLSP Program Manager, Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army (HQDA).

	a.  The advisory official noted the applicant submitted a claim for 7 months of RSLSP for the period 3 February to 30 September 2008 and was paid for this period around February 2010.  Stop loss pay beyond 30 September 2008 falls under the "current" Stop Loss Program which is being managed by HRC.  The deadline for filing claims under the RSLSP was extended several times by Congress under successive Continuing Resolution Authorities.

	b.  He noted that HQDA took measures to avoid duplicate payments by establishing a cutoff date of 30 September 2008 between the "retroactive" and "current" programs.  The programs were enacted by two different pieces of legislation and had different payment rules.  The "retroactive" program was paid in lump sum to eligible claimants while the "current" program was made in monthly payments recorded in the Soldier's leave and earnings statements.  HQDA G-1 Plans and Resources was given responsibility for RSLSP.  HRC was already managing the "current" program when the RSLSP was established in the 2009 Defense Supplemental Authorization Act.

	c.  Soldiers are eligible for the special pay if they were involuntarily retained on active duty beyond a contractual obligation or a request to retire was denied or an approved date was changed.  Based on the information presented, the applicant appears to be eligible for additional stop loss payments under the "current" Stop Loss Program for the period 1 October 2008 until his discharge on 17 April 2009.

12.  On 13 August 2013, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal.  To date, the applicant has not provided a response.

13.  Public Law 110-329, dated 30 September 2008, authorized Stop Loss Special Pay to military members whose established date of separation or approved voluntary retirement is suspended by authority of Title 10, U.S. Code, section 123 or section 12305.

14.  All Army Activities Message Number 089/2009, dated 26 March 2009, announced Army policy and procedures for implementation of Stop Loss Special Pay.  Effective September 2009, Soldiers serving on active duty at any time during Fiscal Year 2009 whose enlistment or obligated service is involuntarily extended or whose eligibility for involuntary separation or retirement is suspended pursuant to Title 10, U.S. Code, section 123 or section 12305, or any other provision of law will be paid $500.00 for each month or portion of the month retained on active duty past their:  (a) contractual ETS date or, in the case of the Reserve Component (RC), a contractual ETS in the Selected Reserve; (b) an approved separation date based on unqualified resignation or release from active duty or, in the case of the RC, an approved request for transfer to the Individual Ready Reserve; or (c) approved retirement based on length of service.  Payment will be retroactive to 1 October 2008.

15.  Military Personnel Message Number 09-111, dated 14 May 2009, announced the Stop Loss Special Pay eligibility and processing procedures.  Effective March 2009, enlisted and officer personnel involuntarily held past their contractual ETS or approved separation/retirement dates due to stop loss are entitled to Stop Loss Special Pay.  Soldiers are not considered to be in a stop loss status until they serve beyond their contractual ETS or approved separation/retirement date.  Eligible Soldiers will be paid $500.00 for each month or portion of the month they are retained on active duty past their contractual separation date.  HQDA will identify Soldiers who were previously stop-lossed at any time between 1 October 2008 and 28 February 2009 and are eligible for RSLSP.  Requests for RSLSP must be based on an HQDA disapproval of a separation/retirement request, a denied attempt to submit a separation/retirement request, or extension beyond an approved separation date due to the Soldier's period of obligated service being involuntarily extended.

16.  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 enlistments extended or retirements 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's contention that he should receive 7 months of RSLSP for the period 1 October 2008 to 17 April 2009 was carefully considered and determined to have merit.

2.  Records show the applicant enlisted in the USAR on 8 January 2002 which established his ETS date as 7 January 2008.  He also contractually agreed to an extension of his ETS date to 11 March 2008.

3.  On 5 March 2008, he was ordered to active duty with his unit and he served on active duty through 17 April 2009.

4.  The applicant requested RSLSP and in spite of the fact that his ETS date was established as 11 March 2008, he was paid RSLSP for the period February 2008 through September 2008.  There is no explanation of why the approval authority established February as the beginning of his entitlement to this payment.

5.  The evidence of record shows that although he was under no contractual agreement at the time, the applicant served on active duty in Iraq from 5 March 2008 through 12 February 2009 and remained on active duty until he was honorably discharged on 17 April 2009.  Thus, it would be reasonable to recognize the applicant's involuntary extension on active duty and authorize 7 months of RSLSP for the period 1 October 2008 to 17 April 2009.

BOARD VOTE:

____X___  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

	a.  showing he was authorized 7 months of RSLSP for the period 1 October 2008 to 17 April 2009 and

	b.  paying him all RSLSP due as a result of this correction, less any withholdings and/or authorized deductions.



      ____________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)                                         AR20130011741



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ABCMR Record of Proceedings (cont)                                         AR20130011741



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