IN THE CASE OF:	  

		BOARD DATE:	  8 January 2009

		DOCKET NUMBER:  AR20080013146 


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, correction of his military records to show his authorization to $800.00 assignment incentive pay (AIP) and $200.00 hazardous duty pay (HDP).

2.  The applicant states, in effect, that the 454th Transportation Company was forced to remain in Iraq longer than 365 days and therefore he is eligible to receive AIP/HDP for that 20 days of involuntary extension.

3.  The applicant indicates he submits two letters, two memoranda, deployment orders and a copy of his separation document (DD Form 214) with his application.  However, only a self-authored statement and his separation document were included with his application when it was received by the Board.

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 military record shows that during the period in question, the applicant was ordered to active duty as a member of the United States Army Reserve (USAR) in support of Operation Iraqi Freedom on 7 December 2003.  It also shows that he held the rank of master sergeant (MSG) and he was assigned for duty with the 454th Transportation Company.

3.  On 27 March 2005, the applicant was honorably released from active duty (REFRAD) by reason of completion of required active service.  The DD Form 214 shows he completed 1 year, 3 months, and 21 days active military service for the period it covered (7 December 2003 - 27 March 2005).  It also shows that served in the Iraqi Theater from 9 February 2004 to 28 February 2005. 

4.  In the processing of this case, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G1, Department of the Army, Washington, DC.  It stated that after a careful review of the applicant’s information it was found that he had served involuntarily in Iraq for a period greater than 365 days.  His extended service in Iraq was due to an administrative error resulting in the Combatant Commander’s office not requesting the Secretary of Defense for approval to extend the applicant’s unit.   Therefore, the applicant qualifies for and is eligible to receive AIP and HDP for the 20 days he served in Iraq that were in excess of 365 days.  It further stated that these pays were not prorated since they are due to an involuntary extension.

5.  On 22 September 2008, the applicant concurred with the advisory opinion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that his record should be corrected to show he is authorized AIP and HDP has been carefully considered.  There is sufficient evidence to support this claim.

2.  The available evidence clearly shows that the applicant served in the Iraqi Theater and was involuntarily extended for a period of 20 days beyond 365 days in Iraq, as evidenced in the Office of the Deputy Chief of Staff G1 advisory opinion.  Therefore, he is eligible to receive AIP and HDP for this service.


BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 that he was involuntarily extended in Iraq and therefore eligible for Assignment Incentive Pay and Hazardous Duty Pay for the 20-day period from 9 to 28 February 2005; and

	b.  paying him all pay and allowances due as a result of this correction.



      ________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)                                         AR20080013146



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ABCMR Record of Proceedings (cont)                                         AR20080013146



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