IN THE CASE OF:	  

	BOARD DATE:	  29 May 2008

	DOCKET NUMBER:  AR20070010472 


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 record in the form of issuance of Contingency Operation Temporary Tour of Active Duty Orders (COTTAD) and payment of retroactive entitlements associated with Assignment Incentive Pay (AIP).

2.  The applicant states, in effect, that his records should be amended to show that he completed 730 days of involuntary mobilization under the provisions of section 12302 of Title 10 United States Code (10 U.S.C. 12302) [involuntary mobilization] and that he was voluntarily mobilized under the provisions of section 12301(d) of Title 10 United States Code (10 U.S.C. 12301(d)) for any days in excess of 730.

3.  The applicant provides a copy of orders to active duty, deployment orders, 
DD Forms 214 (Certificate of Release or Discharge from Active Duty), a letter from his former platoon sergeant, and a copy of his Congressional Inquiry in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he served as a member of the Massachusetts Army National Guard during the period 10 September 1998 through 20 October 2004 when he was discharged from state status and transferred to the United States Army Reserve Control Group (Annual Training) of the Army Reserve Personnel Command based in Saint Louis, Missouri effective 20 October 2004.

2.  The applicant's DD Form 214 for the period ending 6 October 2002 shows he was ordered to active duty under the provisions of 10 U.S.C. 12302 in support of Operation Noble Eagle and served for the period 15 October 2001 through 6 October 2002, a total of 356 days.

3.  The applicant's DD Form 214, for the period ending 23 July 2004, shows he was ordered to active duty under the provisions of 10 U.S.C. 12302 in support of Operation Enduring Freedom and served for the period 5 August 2003 through 23 July 2004, a total of 354 days.  The DD Form 214 also shows the applicant served in Cuba for the period 7 September 2003 through 28 June 2004, a total of 296 days.

4.  United States Army Human Resources Command, Saint Louis, Missouri, Orders M-08-503241, dated 19 August 2005, shows that the applicant was involuntarily ordered to active duty in support of Operation Iraqi Freedom under the provisions of 10 U.S.C. 12302 effective 2 October 2005 for a period of 545 days.

5.  Department of the Army Mobilization Center Shelby, Camp Shelby, Mississippi, Orders 080-553, dated 21 March 2006, deployed the applicant's unit in a Temporary Change of Station to Iraq.

6.  The applicant's DD Form 214, for the period ending 14 April 2007, shows he was ordered to active duty under the provisions of 10 U.S.C. 12302 in support of Operation Enduring Freedom and served for the period 2 October 2005 through 14 April 2007, a total of 559 days.  The DD Form 214 also shows the applicant served in Iraq for the period 25 March 2006 through 11 March 2007, a total of 352 days.

7.  The record shows that the applicant was involuntarily mobilized during the periods 15 October 2001 through 6 October 2002, 5 August 2003 through 23 July 2004, and 2 October 2005 through 14 April 2007, for a total of 1269 days.  The applicant completed 730 cumulative days of mobilization under the provisions of 10 U.S.C. 12302 on 23 October 2005.

8.  The applicant provides a copy of a Congressional Inquiry pertaining to his case.  The packet includes:

	a.  A letter from the applicant addressed to a United States Senator, dated 17 May 2007, requesting his assistance with correcting his military record in order to receive retroactive payment of AIP.

	b.  A letter from the United States Senator addressed to the applicant, dated 5 June 2007, acknowledging receipt of the applicant's request for assistance and informing the applicant that he will make an inquiry on his behalf.

	c.  A letter from the United States Senator addressed to the applicant, dated 21 June 2007, informing the applicant that he had received a response to his inquiry on the applicant's behalf.  The Senator provided the applicant a copy of the response.

	d.  A letter from the Assistant Chief of Staff of the Departments of the Army and the Air Force Joint Force Headquarters, Massachusetts National Guard, Office of the Adjutant General, Milford, Massachusetts, dated 19 June 2007, was prepared in response to the Senator's inquiry on the applicant's behalf.  The Assistant Chief of Staff acknowledges that the applicant appears to be entitled to payment of AIP.  However, he points out the fact that at the time the administrative error was made, the applicant had been discharged from the Massachusetts Army National Guard and assigned to the United States Army Reserve Control Group, of the Army Reserve Personnel Command based in Saint Louis, Missouri effective 20 October 2004.  The Assistant Chief of Staff opined that since the applicant was mobilized as a member of United States Army Reserve, they would be responsible for processing his COTTAD packet for AIP.

9.  The applicant provides a letter from his former Platoon Sergeant, dated 10 July 2007, in which he summarizes the administrative actions that were taken in an attempt to obtain AIP for the applicant.  The Platoon Sergeant essentially states that the applicant's eligibility for AIP was identified at the Camp Shelby mobilization station prior to deployment.  He continues that in spite of the applicant's numerous attempts to seek resolution at multiple echelons of the Army before, during, and after deployment, his problem was never resolved.  The Platoon Sergeant concludes that the applicant is fully qualified for AIP and should be paid all of his retroactive entitlements.

10.  On 4 April 2008, an advisory opinion was rendered by the Chief, Compensation and Entitlements Division of the Office of the Deputy Chief of Staff G-1.  The Chief, Compensation and Entitlements Division recommended that the application be approved.  He acknowledges that the applicant has served three partial mobilization tours under 10 U.S.C. 12302.  The Chief, Compensation and Entitlements Division opined that the applicant had exhausted his partial mobilization clock by 23 October 2005.  He further opined that the applicant should have been placed on COTTAD orders for the duration of his tour.  

11.  The Chief, Compensation and Entitlements Division concluded that had the applicant been placed on COTTAD orders under 10 U.S.C. 12301(d), he would have been eligible for AIP from 25 March 2006 through 11 March 2007.  The Chief, Compensation and Entitlements Division recommended amending United States Army Human Resources Command, Saint Louis, Missouri, Orders M-08-503241, dated 19 August 2005, to show 23 days under 10 U.S.C. 12302 and the remainder of his tour under 10 U.S.C. 12301(d); and the Defense Finance and Accounting Service be advised to pay AIP at $1,000 per month from 25 March 2006 through 11 March 2007.

12.  Department of the Army Personnel Policy Guidance, in effect at the time of the applicant's mobilization, paragraph 10-3 provides that Reserve Component Soldiers who voluntarily request to serve beyond their 24-month mobilization authorized under the provisions of 10 U.S.C. may request an extension under the policy guidance for COTTAD.  Soldiers transitioning without a break in service will not go through REFRAD process until the end of their COTTAD.  Updated COTTAD procedures went into effect on 5 January 2006 to support the voluntary transition of Reserve Component Soldiers from Partial Mobilization under the provisions of 10 U.S.C. 12302 to voluntary COTTAD orders under the provisions of 10 U.S.C. 12301(d).

13.  Department of the Army Personnel Policy Guidance, in effect at the time of the applicant's mobilization, states that COTTAD request will not exceed 365 days at a time for Soldiers serving in CONUS locations and 545 days for Soldiers serving in OCONUS locations.  Soldiers supporting valid Global War on Terrorism requirements may request COTTAD orders totaling 1095 days.  Requests beyond authorized durations required DCS G-1 approval prior to HRC-A publishing orders.

14.  Department of the Army Personnel Policy Guidance, in effect at the time of the applicant's mobilization, states that the COTTAD policy applies to Soldiers in the following categories:
	
	Category 1:  Applies to Soldiers preparing for mobilization who do not have sufficient partial mobilization authority (Section 12302 Title 10 U.S.C.) remaining to complete required Boots On Ground (BOG) period with their units, and voluntarily request a COTTAD in order to complete 12 months BOG with their units (OCONUS-CENTCOM AOR).


	Category 2:  Applies to Soldiers mobilized under the provisions of section 12302 of Title 10 U.S.C., partial mobilization, who are already deployed and request a COTTAD to complete 12 months BOG with their deployed unit.  COTTAD requests will not exceed the maximum number of days authorized under the mobilization order.

	Category 3:  Applies to Soldiers currently mobilized under the provisions of section 12302 of Title 10 United States Code, partial mobilization, executing a CONUS-based mission and who request a transition to COTTAD orders to fill a valid requirement.

	Category 4:  Applies to Soldiers mobilized under the provisions of section 12302 of Title 10 United States Code, partial mobilization, who are deployed OCONUS and who request a COTTAD in order to remain in theater to support another requirement after their unit redeploys.

	Category 5:  Applies to Soldiers currently on active duty under a COTTAD order and requests an extension of their current orders or is requesting to fill a new valid requirement.

	Category 6:  Applies to Soldiers who are not currently mobilized or on any type of active duty order and volunteer to fill a valid requirement under COTTAD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his records should be amended to show that he completed 730 days of involuntary mobilization under the provisions 10 U.S.C. 12302 and that he was voluntarily mobilized under the provisions of 10 U.S.C. 12031(d) for any days in excess of 730 were carefully considered

2.  Evidence shows that the applicant was involuntarily mobilized for 1269 days during the periods 15 October 2001 through 6 October 2002, 5 August 2003 through 23 July 2004, and 2 October 2005 through 14 April 2007.  Based on applicable law and regulation, in effect at the time of his mobilization, the applicant is only authorized to be involuntarily mobilized for a total of 730 days.  As a result his third involuntary mobilization should have ended on 23 October 2005.  Additionally, his voluntary COTTAD orders should have commenced on 24 October 2005 and continued through 14 April 2007.  



3.  Evidence shows the applicant and his unit made a diligent effort to submit a COTTAD prior to deployment, but was misinformed by finance personnel at both their mobilization site and in Iraq.

4.  Based on the foregoing, it would be appropriate in this case to amend the applicant's records to show that he was involuntarily mobilized under the provisions of 10 U.S.C. 12302 during the periods 15 October 2001 through 6 October 2002, 5 August 2003 through 23 July 2004, and 2 October 2005 
through 23 October 2005 and voluntarily mobilized under the provisions of 
10 U.S.C. 12301(d) during the period 24 October 2005 through 14 April 2007.

5.  Additionally, the applicant is entitled to payment of $1000.00 a month of AIP during the period that he was voluntarily serving under the provisions of 10 U.S.C. 12301(d).  As a result, notwithstanding the advisory opinion, it would be appropriate that the Defense Finance and Accounting Service pay the applicant all AIP benefits entitled during the period 24 October 2005 through 14 April 2007 and if entitled, any additional periods of voluntary mobilization on COTTAD orders after 14 April 2007 in support of an authorized boots on ground program.

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 showing that:

	a.  the applicant was involuntarily mobilized under the provisions of 10 U.S.C. 12302 during the period periods 15 October 2001 through 6 October 2002, 5 August 2003 through 23 July 2004, and 2 October 2005 through 23 October 2005; 

	b.  he was voluntarily mobilized under the provisions of 10 U.S.C. 12301(d) during the period 24 October 2005 through 14 April 2007, the date of his release from active duty in support of Operation Iraqi Freedom; and

	c.  he be paid all benefits associated with Assignment Incentive Pay during the period that he was voluntarily mobilized under 10 U.S.C. 12301(d).




      ___________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)                                         AR20070010472



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ABCMR Record of Proceedings (cont)                                         AR20070010472



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