IN THE CASE OF:	  

		BOARD DATE:	  1 July 2014

		DOCKET NUMBER:  AR20130014508 


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, payment of 9 months of Retroactive Stop Loss Special Pay (RSLSP).

2.  The applicant states she did not receive RSLSP.  She should have received that pay due to her retention on active duty beyond her mandatory removal date (MRD) of 1 January 2008.  She submitted her application for RSLSP on 7 March 2011.  It was denied on 10 August 2011 due to "the period claimed is ineligible for RSLSP."  She was not advised of any other bases for the denial of her claim.  She requested reconsideration of her request on 15 August 2011 and submitted evidence to show the period she claimed was indeed eligible.  Her request for reconsideration was denied on 17 November 2011 on entirely different grounds; i.e., no memorandum or documentation of a denial/suspension of approved retirement.  She was not able to request reconsideration of this new basis for denial of her claim because she exhausted her one-time request for reconsideration.  No request for retirement is needed when facing MRD in the U.S. Army Reserve (USAR).  Upon reaching MRD, retirement orders are automatically issued.  Because she was mobilized when her MRD was imminent, she contacted the U.S. Army Human Resources Command (HRC) and sent them a copy of her mobilization orders.  Thus, she was not retired at her MRD.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 September 2008
* HRC MRD Calculator printout
* correspondence and denial email related to her claim
* Internet printout from website www.defense.gov
* Frequently Asked Questions for RSLSP
* Orders A-10-721768, dated 31 October 2007
* Orders A-10-721768A01, dated 27 December 2007
* Orders M-01-800006, dated 4 January 2008
* Orders M-04-800800, dated 8 April 2008
* Personnel Qualification Record

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she was born in December 1956.

2.  She was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 17 December 1977.  She completed the Military Police Officer Basic Course.

3.  In September 1995, she applied for and was accepted for appointment in the Judge Advocate General's Corps (JAGC) in the grade of major without concurrent call to active duty.

4.  On 2 February 2001, HRC issued her a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

5.  She was promoted to colonel in the USAR on 1 July 2003.

6.  On 31 October 2007, HRC published Orders A-10-721768 ordering her to active duty under the provisions of Title 10, U.S. Code, section 12301(d) (10 USC 12301(d)), from 5 November 2007 to 27 December 2007 (1 month and 23 days) under Contingency Operations for Active Duty Operational Support (CO-ADOS).  She was assigned to the U.S. Legal Services, Arlington, VA.

7.  On 1 December 2007, HRC notified her by memorandum that her records revealed she would reach her maximum years of service in the USAR on 1 January 2008.  The purpose of this memorandum was to afford her the option to transfer to the Retired Reserve.  She was requested to indicate her preference (discharge or transfer to Retired Reserve) on the reverse of this memorandum.  It is unclear if she responded to this memorandum or made an election.

8.  On 27 December 2007, HRC published Orders A-10-721768A01 amending her period of active duty from 1 month and 23 days to 2 months ending on 4 January 2008.

9.  On 4 January 2008, HRC published Orders C-01-800191 ordering her voluntary reassignment from the USAR Control Group (Reinforcement) and assigning her to the Department of the Army Office of the Judge Advocate General, Washington, DC, effective 31 December 2007.

10.  Also, on 4 January 2008, HRC published Orders M-01-800006 ordering her to active duty under the provisions of 10 USC 12302 from 5 January 2008 to 8 May 2008 (125 days) under partial mobilization in support of Operation Enduring Freedom.  She was assigned to the U.S. Army Garrison, Fort Belvoir, VA.

11.  On 8 April 2008, HRC published Orders M-04-800800 ordering her to active duty under the provisions of 10 USC 12302 from 8 May 2008 to 29 September 2008 (144 days) under partial mobilization in support of Operation Enduring Freedom.  She was assigned to the U.S. Legal Services, Arlington, VA.

12.  On 29 September 2008, she was honorably released from active duty and transferred to the USAR Control Group (Individual Mobilization Augmentee (IMA)).

13.  On 3 October 2008, HRC published Orders C-10-817249 voluntarily releasing her from assignment to the Department of the Army Office of the Judge Advocate General, Washington, DC, and assigning her to the Judge Advocate General Detachment, Legal Support Organization, Fort Sam Houston, TX.

14.  On 16 December 2008, Headquarters, 90th Regional Readiness Command, North Little Rock, AR, published Orders 08-351-00002 releasing her from her current assignment and transferring her to the Retired Reserve effective 1 January 2009 by reason completion of 20 or more qualifying years of service for retired pay at age 60.

15.  Her AHRC Form 249-E (Chronological Statement of Retirement Points) shows she completed 28 years and 16 days of qualifying service toward non-regular retirement.

16.  On 7 March 2011, the applicant submitted an online application for RSLSP.  She stated the request was for stop loss pay due to her extension beyond her MRD.  Her MRD was 1 January 2008 due to her 30 years of commissioned service.  She contended that she was extended on active duty beyond her MRD from 1 January 2008 to 29 September 2008.

17.  On 10 August 2011, the U.S. Army RSLSP Office denied her application and stated that after a review of her case, the period claimed was determined to be ineligible for RSLSP.

18.  On 15 August 2011, she submitted a request for reconsideration.  She again contended that she was held beyond her MRD and she was separated on 29 September 2008.  She stated that according to the www.defense.gov website, eligible periods included 11 September 2001 through 30 September 2009.  Her claim falls within the period of eligibility.

19.  On 17 November 2011, she was notified by email that her request for RSLSP reconsideration was reviewed and remained denied.  In accordance with (IAW) All Army Activities (ALARACT) Message 277/2009, paragraph 8a, for officers to be eligible to receive RSLSP compensation, they must provide a memorandum/correspondence documenting denial or suspension of their approved retirement.  A review of her records did not indicate she attempted to retire and that the approved retirement was denied.

20.  An advisory opinion was received on 29 October 2013 from the Department of the Army Office of the Deputy Chief of Staff, G-1, in the processing of this case.  The Chief, Compensation and Entitlements Division, recommended denial of her request and stated:

	a.  The applicant requested 9 months of RSLSP on 7 March 2011.  She was notified by email that her claim was denied because she was serving on voluntary orders under the authority of 10 USC 12301(d).  She requested reconsideration of her denied claim and was notified on 17 November 2011 that she was ineligible to receive RSLSP because she was serving in a voluntary status under 10 USC 12301(d) orders.  In order to receive RSLSP, a Soldier must have been involuntarily held beyond a contractual obligation, or a request to separate or retire was denied, or an approved separation or retirement was amended involuntarily.

	b.  A review of block 18 (Remarks) of her DD Form 214 states, "'…ordered to Active Duty in support of Operation Enduring Freedom lAW 10 USC 12301(d)....' 
An additional review of her service records, TAP-RC [Total Army Personnel-Reserve Component], shows a voluntary transfer on 4 January 2013 [sic] from TPU [troop program unit] to IMA status with an initial service agreement date through 5 July 2008.  SM [service member] on orders to be JAG XO at DA [Judge Advocate General Executive Officer at Department of the Army], on IMA orders 9 May 2008 to 29 September 2008.  These voluntary actions support the previous determination that [applicant] was not held beyond a contractual obligation nor was a request to retire or separate denied."  Even though she served beyond her calculated MRD, her records show that her service was voluntary during the period requested.  The applicant's request for relief should be denied.

21.  On 3 December 2013, she submitted a lengthy rebuttal as follows:

	a.  The advisory opinion has several errors.  The first of these is that the last four digits of the social security number that appear after her name in the subject line are not hers.  The advisory opinion states she was notified on 17 November 2011 that she was ineligible to receive RSLSP because she was serving in a voluntary status under 10 USC 12301(d) orders.  This is incorrect.  She was never notified of a denial based on these grounds.  She was notified on 10 August 2011 that her request was denied because the period claimed was ineligible for RSLSP.  She then submitted a request for reconsideration providing proof that the eligible period for RSLSP was 11 September 2001-30 September 2009 and that her claimed period did indeed fall within that period of eligibility.  She was notified on 17 November 2011 that her request for reconsideration was denied on entirely different grounds; i.e., "no memo[random] or documentation of a denial/suspension of approved retirement."

	b.  She notes that if she had been informed at any time that the basis for denial of her claim or her request for reconsideration was that she was "serving in a voluntary status on section 12301(d) orders," that she could have shown that she was serving past her MRD under 10 USC 12302 (involuntary) orders.  She was not provided these new grounds as the basis for either denial.  Her active duty period was from 5 November 2007 through 29 September 2008 and consisted of consecutive orders.  The first of these orders, as amended, listed 10 USC 12301(d) as the authority, the second and third orders listed 10 USC 12302.  It should be noted that the first of these orders, as amended, were issued prior to her MRD of 1 January 2008 while the subsequent orders were issued after her MRD.  The Board should note that there is a short overlap of her MRD and the 10 USC 12301(d) orders; i.e., her MRD was 1 January 2008 and the 10 USC 12301(d) orders ended on 4 January 2008.  The relevant orders are as follows:

* Orders A-10-721768, dated 31 October 2007, with a reporting date of 5 November 2007 for 1 month 23 days – by authority of 10 USC 12301(d)
* amendment Orders A-1 0-721768A01, dated 27 December 2007, amended Orders A-10-721768 to read 2 months with an ending date of 4 January 2008 – the authority remained 10 USC 12301(d)
* Orders M-01-800006, dated 4 January 2008, with a reporting date of 5 January 2008, not to exceed 125 days to be released from active duty no later than 8 May 2008 – by authority of 10 USC 12302
* Orders M-04-8008000, dated 8 April 2008, with a reporting date of 9 May 2008 not to exceed 144 days to be released from active duty 29 September 2008 – by authority of 10 USC 12302

	c.  The advisory opinion cites her DD Form 214 as authority for stating she served in a voluntary status under 10 USC 12301(d), but the Board will note that the DD Form 214 did not list all of her active duty orders and listed only the initial orders as amended.  These initial 10 USC 12301(d) orders ended on 4 January 2008, yet the DD Form 214 covered the entire period of the consecutive orders listed above, which included the periods under 10 USC 12302.  While the DD Form 214 is complete as to the record of service, it is incomplete in its recitation of orders and authorities.

	d.  The advisory opinion also cites a "voluntary transfer on 4 January 2013 [sic] from TPU to IMA status with an initial service agreement date through 5 July 2008."  She is enclosing the relevant orders C-01-B00191, dated 4 January 2008, that show her transfer from the USAR Control Group (Reinforcement) – not TPU status – effective 31 December 2007.  The Board should also note there is no initial service agreement date through 5 July 2008, but rather general language stating that upon notification of an emergency order she would report for "duration +6 months unless sooner relieved."  Although the orders state the reason is "voluntary," the effective date of the action was prior to her MRD and while she was serving under 10 USC 12301(d) orders.  She can only surmise that these transfer orders were issued to support some administrative requirement that had to be met prior to issuance of the 10 USC 12302 active duty orders of the same date (but with a later effective date).

	e.  The advisory opinion also cites "IMA orders of 9 May 2008 to 29 September 2008" as evidence of a voluntary action.  As stated above, these orders are dated 8 April 2008 and were follow-on active duty orders under 10 USC 12302, with effective dates of 9 May 2008 to 29 September 2008, and not evidence of any voluntary action.

	f.  The advisory opinion admits that she served beyond her calculated MRD, but states that her records show her service was "voluntary during the period requested."  She believes the records show the opposite and the advisory opinion overlooked this evidence, including the plain language of the two mobilization orders themselves, which cited 10 USC 12302 as the authority.  She is including the memorandum from HRC (copy previously provided to the Board), dated 1 December 2008, that informed her of her MRD of 1 January 2008 and gave her the options of either transferring to the Retired Reserve or requesting discharge.  It should be noted that there is no third option; i.e., volunteering to be held beyond her MRD.

	g.  She is also including printouts of her HRC Portal Reserve Record, orders, and assignments, so the Board can see her full record of the relevant assignments and orders.  The Board should note the MRD of 1 January 2008 is shown on her Reserve record page and also note the orders page that shows her relevant active duty periods as split between temporary tour of active duty/
extended active duty and mobilization.  She believes the facts show she is eligible for RSLSP for the months she was involuntarily held beyond her MRD.

22.  ALARACT 277/2009, dated 7 October 2009, announced Army policy and procedures for implementation of RSLSP.  It states:

Retroactive Stop Loss Special Pay is a special pay for military members, to include members of the Reserve Component, 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 section 123 or section 12305, Title 10, United States Code (commonly referred to 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 expiration of term of service (ETS) or, in the case of the Reserve Component, a contractual expiration of term of service in the Selected Reserve.

	b.  An approved separation date based on unqualified resignation or release from active duty (REFRAD) or, in the case of the Reserve Component, an approved request for transfer to the Individual Ready Reserve (IRR) (provided the service member has completed the statutory or contractual expiration of term of service 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.

	e.  In the case of the Ready Reserve (IRR, IMA and other individually managed service members), military service obligation or contractual term of service, whichever is later.

23.  10 USC 12301(d) provides that at any time, an authority designated by the Secretary concerned may order a member of a Reserve Component under his or her jurisdiction to active duty or retain him or her on active duty with the consent of that member.  However, a member of the Army National Guard of the United States or the Air National Guard of the United States may not be ordered to active duty under this subsection without the consent of the governor or other appropriate authority of the State concerned.  10 USC 12302 provides that in time of national emergency declared by the President after 1 January 1953, or when otherwise authorized by law, an authority designated by the Secretary concerned may, without the consent of the persons concerned, order any unit and any member not assigned to a unit organized to serve as a unit in the Ready Reserve under the jurisdiction of that Secretary to active duty for not more than 24 consecutive months.

DISCUSSION AND CONCLUSIONS:

1.  The RSLSP policy authorizes eligible service members a payment of $500.00 per month or a portion of the month of active duty past their contractual obligation.  The purpose of the RSLSP is to compensate qualified Soldiers held beyond their contractual agreements.  The period claimed must have a starting date and ending date based on the last contractual period.

2.  The available evidence shows the applicant was notified of her 1 January 2008 MRD and asked to make an election regarding her transfer to the Retired Reserve.  She did not make an election.  Subsequently, she was voluntarily ordered to active duty under 10 USC 12301(d) for the period 5 November 2007 through 4 January 2008.  Additional orders on file also confirm she was involuntarily ordered and/or extended on active duty beyond her MRD from 5 January through 29 September 2008 under 10 USC 12302.  Accordingly, she is authorized RSLSP based on this involuntary service.

3.  Notwithstanding the recommendation to deny the applicant's request for RSLSP offered in the advisory opinion, she is entitled to this benefit for her involuntary service performed beyond her contractual obligation, which in this case was her 1 January 2008 MRD.  Accordingly, the requested relief should be granted at this time.


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 authorizing her payment of RSLSP from 5 January through 29 September 2008 based on her involuntary orders to active duty under 10 USC 12302.



      ____________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)                                         AR20130014508



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ABCMR Record of Proceedings (cont)                                         AR20130014508



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