IN THE CASE OF: BOARD DATE: 18 February 2016 DOCKET NUMBER: AR20150007038 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, in effect, that he extended his enlistment before his last deployment because he fell within the window to receive DESP payment. He never received any of the DESP payments and was instructed to file an Inspector General (IG) complaint after multiple failed attempts to correct the problem. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 9 January 2011 * his agreement for DESP, dated 9 January 2011 * Mobilization Orders Number 165-300, dated 14 June 2011 * DA Form 4187 (Personnel Action), 6 October 2011 * Release from Active Duty Orders Number 222-0139, dated 9 August 2012 * USPFO 8 (Transmittal Letter for Military Pay Documents), dated 14 August 14 * a memorandum, dated 10 September 2014, from his Army National Guard (ARNG) aviation regiment commander * email correspondence 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 a sergeant (SGT) in the Texas Army National Guard (TXARNG). His expiration of term of service (ETS) was established as 27 June 2011. 3. On 9 January 2011, he executed an extension for a period of 1 year and 6 months. His new ETS was 27 December 2012. In conjunction with his extension, he signed an agreement for DESP wherein he agreed to extend his service obligation in a designated billet for the purpose of assignment incentive pay at the rate of $500.00 per month for 12 months for each month that he was mobilized and served in a Title 10 status not to exceed $6,000.00 maximum incentive pay. 4. On 14 June 2011, TXARNG Orders Number 165-300, ordered him to active duty effective 30 August 2011 for a period not to exceed 400 days in support of Operation New Dawn. The authority was Title 10, U.S. Code, section 12302 (Partial mobilization). 5. On 6 October 2011, the applicant’s company commander initiated a DA Form 4187 requesting DESP payments in accordance with National Guard Bureau (NGB) – Policy Memorandum Number 09-020, ARNG DESP Implementation Guidance for Units Mobilizing after 1 September 2009 without Stop Loss, dated 28 May 2009. The applicant’s name is not identified on the form nor is there a roster of names attached to this form available for the Board to review. 6. On 8 September 2012, the applicant was honorably released from active duty to the control of the TXARNG. He served in the imminent danger pay area of Kuwait from 21 November 2011 to 6 August 2012. He completed 1 year and 9 days of creditable active service during this period of service. 7. On 14 August 2014, his name was forwarded to his State U.S. Property and Fiscal Officer (USPFO) for DESP payment by his unit. The applicant provides email correspondence from USPFO-TX stating that the applicant was not entitled to DESP due to not extending for enough months to qualify for payment. Also, the payment amount would be $350.00 per month if he did qualify. Further, the DA Form 4187 must be signed by a field grade officer in his chain of command. (The DA Form 4187 was signed by a first lieutenant/pay grade O-1.) 8. By email on 22 August 2014, NGB Mobilization Policy Branch stated that the applicant was eligible to receive DESP at the $350.00 per month rate for each qualifying month. He extended for 18 months which was 234 days prior to his mobilization date. His name was apparently omitted from the original roster submitted to USPFO. NGB no longer has the authority to grant exceptions to policy (ETP) for DESP. Guidance was provided to submit an ETP with a colonel/pay grade O-6 signature to Headquarters, Department of the Army. 9. On 10 September 2014 the applicant’s brigade commander in pay grade O-6 submitted an ETP request for DESP to the NGB. He stated the applicant had signed an enlistment extension in good faith for DESP. It was determined the applicant’s name was omitted from the unit roster of personnel eligible for the DESP when it was originally forwarded to the USFPO for payment. 10. On 26 August 2015, the Deputy Chief, Personnel Policy Division, NGB, provided an advisory opinion. The advisory official recommended approval of the applicant’s request for DESP in the amount of $350.00 per month for each qualifying month. TXARNG concurred with the recommendation. 11. The applicant was provided a copy of the advisory opinion for his review and comment. He did not object to the advisory official's findings. 12. The DESP program was designed to stabilize ARNG units as early as possible during the pre-mobilization period. The service obligation for enlisted members ends on their ETS date. Soldiers 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 projected mobilization date (M-180 through M+365) are eligible for DESP. Soldiers who contract for DESP between 180 – 269 days prior to mobilization will be paid $350 a month after the mobilization date. 13. NGB Policy Memorandum Number 12-063, dated 21 August 2012, states "Certification of Eligibility. To initiate the process for payment, commanders will, upon mobilization, prepare a DA Form 4187 for signature by the first field grade officer in their chain of command. The commander will submit the DA Form 4187 to their State USPFO, listing the names of all Soldiers eligible for DESP. In order to preclude an occurrence of fraud, abuse or mismanagement, commanders at all levels are required to govern DESP effectively. If a Soldier subsequently becomes ineligible for DESP, the unit commander must submit a new DA Form 4187 notifying the State." DISCUSSION AND CONCLUSIONS: The evidence of record confirms the applicant executed an oath of extension 234 days prior to his mobilization date of 30 August 2011 and he was mobilized for a period of 12 months in support of Operation New Dawn. It appears that due to an administrative error on the part of his unit during the preparation of his DA Form 4187, his name was left off the initial request for DESP and the form was not signed by a field grade officer. The NGB confirmed that on 6 October 2011 the applicant did contract for, and was authorized, DESP in the amount of $350.00 per month for a period not to exceed 12 months. Therefore, an exception to policy should be granted as a matter of justice. 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 and State ARNG records of the individual concerned be corrected by showing an exception to policy was granted for DESP, in effect, correcting his DA Form 4187 to show it was properly prepared and signed on 6 October 2011 by an appropriate authority making him eligible for DESP in the amount of $350.00 per month, that it was submitted in a timely manner, and then paying him accordingly. _______ _ _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) AR20150007038 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007038 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1