IN THE CASE OF:  	  

		BOARD DATE:  28 April 2015	  

		DOCKET NUMBER:  AR20140010456 


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 (RSLSP) for the period 4 October 2002 to 3 October 2003.

2.  The applicant states:

	a.  In December 2001, he submitted a request for retirement from the Army National Guard (ARNG) after completing more than 20 qualifying years of service for retirement purposes.

	b.  On 8 February 2002, the Department of Defense (DOD) authorized stop loss and his retirement orders were revoked.

	c.  He last served on active duty from October 2002 through October 2003.  At the time of his separation from active duty, he resided in Washington, DC.  In May 2004, he relocated to North Carolina.  In December 2007 at age 60, he started receiving his Reserve retired pay.

	d.  He was only recently made aware that legislation was passed sometime around 2008 to compensate Soldiers who were retained under stop loss as a result of the Iraq and Afghanistan wars.  He was never contacted and never received notification from the Army concerning passing of the legislation or information with respect to filing a claim.  The Army was notified of his North Carolina change of address because he had to make that change when he filed for his pension in 2007.

	e.  Had he known about the legislation, he would have filed his claim in a timely manner.  There was no reason why he should not have been contacted by DOD in that he was receiving a pension from the Army at the time the legislation was passed.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2944 (Claim for Retroactive Stop Loss Payment)
* memoranda, dated 23 August 2002 and 19 August 2003
* active duty orders, dated 24 September 2002
* separation orders, dated 4 February 2004 

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.  Having prior enlisted service and warrant officer service in the U.S. Army Reserve (USAR) and ARNG, the applicant was appointed as a chief warrant 
officer four in the ARNG effective 9 August 1999.

3.  Records show the applicant submitted a request in December 2001 for transfer to the USAR Retired Reserve effective 28 February 2002.  His retirement orders were issued and subsequently revoked after DOD authorized stop loss on 8 February 2002.

4.  He was ordered to active duty on 4 October 2002 in support of Operation Noble Eagle.  He was released from active duty on 3 October 2003.

5.  He was honorably discharged from the ARNG on 27 January 2004 and was reassigned to the USAR Retired Reserve effective 28 January 2004.

6.  He provided a DD Form 2944, dated 16 May 2014, for the period October 2002 to October 2003.

7.  The applicant died on 30 November 2014.

8.  In the processing of this case an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB), dated 27 February 2015.  NGB recommended approval of the applicant's request for RSLSP for the period 4 October 2002 to 3 October 2003.  The opinion states:

	a.  On 9 December 2001, the applicant initiated a request for retirement, requesting to be placed in a retired Reserve status effective 28 February 2002.

	b.  The Assistant Secretary of the Army for Manpower and Reserve Affairs implemented Stop Loss 3 on 27 December 2001, expanding the stop loss provision to military police specialties.  The applicant was serving as a U.S. Army Criminal Investigation Command special agent when Stop Loss 3 was implemented.  Additionally, the new Reserve Component (RC) unit stop loss policy expanded the stop loss provisions to all alerted/mobilized RC units effective 21 November 2002.

	c.  The applicant was mobilized in support Operation Noble Eagle for the period 4 October 2002 to 3 October 2003.

	d.  On 27 January 2004, the applicant was honorably separated from the ARNG and assigned to the USAR Control Group (Retired Reserve).

	e.  On 21 October 2009, RSLSP was implemented under House Resolution 
2346, War Supplemental Appropriations Act, 2009, Public Law 111-32.  RSLSP is a special pay for military members who had their service involuntarily extended at any time from 11 September 2001 to 30 September 2009.  All Army Activities Message 277/2009 established the 21 October 2010 original deadline for submitting RSLSP applications.  The final RSLSP application deadline expired on 21 October 2012.

	f.  The evidence provided with the applicant's application and the coupled applicable stop loss policy in place during his period of mobilization supports a recommendation to approve his application.  The applicant should be entitled to all RSLSP compensation for the period 4 October 2002 to 3 October 2003.

	g.  This opinion was coordinated with the NGB Mobilization Readiness Branch.  The District of Columbia ARNG concurs with this opinion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested RSLSP for the period 4 October 2002 to 3 October 2003.

2.  The evidence confirms:

	a.  On 9 December 2001, he initiated a request for transfer to the USAR Retired Reserve effective 28 February 2002.  It appears his request was denied because Stop Loss 3 was implemented on 27 December 2001.

	b.  He was mobilized for the period 4 October 2002 to 3 October 2003.

	c.  On 27 January 2004, he was honorably discharged from the ARNG and reassigned to the USAR Retired Reserve.

	d.  On 21 October 2009, RSLSP was implemented.  RSLSP is a special pay for military members who had their service involuntarily extended at any time from 11 September 2001 to 30 September 2009.  The final RSLSP application deadline expired on 21 October 2012.

3.  The applicant died on 30 November 2014.

4.  Since the applicant's service was involuntarily extended from 4 October 2002 to 3 October 2003 for mobilization in support of Operation Noble Eagle, and in accordance with the NGB advisory official's recommendation, the applicant's estate is entitled to RSLSP compensation for the period 4 October 2002 to 3 October 2003.

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 was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by:

	a.  showing he filed a DD Form 2944 for the period 4 October 2002 to 3 October 2003 and it was approved in a timely manner and

	b.  paying his estate RSLSP for the period 4 October 2002 to 3 October 2003.



      ___________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)                                         AR20140010456



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ABCMR Record of Proceedings (cont)                                         AR20140010456



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