IN THE CASE OF:	 

	BOARD DATE:	  20 May 2008 

	DOCKET NUMBER:  AR20070012890 


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, amendment of his Contingency of Operation Temporary Tour of Active Duty (COTTAD) Orders, correction of his DD Form 
214 (Certificate of Release or Discharge from Active Duty), 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.  The applicant continues that he was mobilized and deployed six times since December 2000.  He adds that administrative oversights by two commands failed to advise him that he was eligible for AIP and accordingly, the mobilization orders that he received did not reflect his authorization to receive AIP.  He contends that he is not receiving AIP because two of his orders (Headquarters, United States Army Special Operations Command, Fort Bragg, North Carolina Order R344-16 and Headquarters, First United States Army, Forest Park, Georgia, Permanent Orders 144-17(Change 1)) are incorrect.

3.  The applicant provides a three-page self-authored statement, seven DD Forms 214, and four orders in support of this application.


CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he retired from the United States Army Reserve effective 31 December 2007.  He held the military occupational specialty 61H (Family Physician) and the rank of colonel (COL)/pay grade O-6 at the time of his retirement.

2.  The applicant's DD Form 214 for the period ending 20 April 2001 shows that he was ordered to active duty under the provisions of 10 U.S.C. 12304 in support of Operation Joint Guardian and served for the period 10 December 
2000 through 20 April 2001, a total of 132 days.  The form also shows that during this period of active duty, he served in the imminent danger pay areas of Macedonia, Kosovo, and Bulgaria for a total of 105 days.

3.  The applicant's DD Form 214 for the period ending 4 October 2001, shows that he was ordered to active duty under the provisions of 10 U.S.C. 12304 in support of Operation Joint Guardian and served for the period 8 July 
2000 through 4 October 2001, a total of 89 days.  The form also shows that during this period of active duty, he served in the imminent danger pay areas of Macedonia, Kosovo, and Bulgaria for a total of 72 days.

4.  The applicant's DD Form 214 for the period ending 22 December 2002, shows that he was ordered to active duty under the provisions of 10 U.S.C. 12304 in support of Operation Enduring Freedom and served for the period 18 August 
2002 through 22 December 2002, a total of 127 days.  The form also shows that during this period of active duty, he served in the imminent danger pay area of Afghanistan for a total of 94 days.

5.  The applicant's DD Form 214 for the period ending 14 October 2003, shows that he was ordered to active duty under the provisions of 10 U.S.C. 12302 in support of Operation Enduring Freedom and Operation Noble Eagle and served for the period 6 April 2003 through 14 October 2003, a total of 192 days.  The form also shows that during this period of active duty, he served in Bosnia, Germany, and Hungary for a total of 139 days.

6.  Headquarters, United States Army Special Operations Command, Fort Bragg, North Carolina, Order R344-16, dated 10 December 2003, show the applicant was ordered to active duty under the provisions of 10 U.S.C. 12302 in support of Operation Iraqi Freedom on 10 December 2003 for a period not to exceed 545 days.


7.  The applicant's DD Form 214 for the period ending 25 November 2004 shows that he was ordered to active duty under the provisions of 10 U.S.C. 12302 in support of Operation Enduring Freedom and Operation Noble Eagle and served for the period 10 December 2003 through 25 November 2004, a total of 352 days.  The form also shows that during this period of active duty, he served in Kuwait and Iraq for a total of 260 days.

8.  Headquarters, First United States Army, Forest Park, Georgia, Permanent Orders 144-17(Change 1), dated 24 May 2005, show the applicant's unit and its members were ordered to active duty under the provisions of 10 U.S.C. 
12302 and the authority of Department of the Army Message Number 861-05 in support of Operation Iraqi Freedom on 16 June 2005 for a period not to exceed 24 months.

9.  99th Regional Readiness Command, Coraopolis, Pennsylvania, Orders 05-151-00057, dated 31 May 2005, show the applicant was ordered to active duty under the provisions of 10 U.S.C. 12302 and the authority of Department of the Army Message Number 861-05 in support of Operation Iraqi Freedom on 19 June 2005 for a period of 365 days.

10.  Headquarters, United States Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, Orders 214-43, dated 2 August 2005, shows the applicant was deployed to Iraq, along with his unit, for a period of 365 days.  The orders show a proceeding date of 1 July 2005 and an ending date of 18 June 2006.

11.  The applicant's DD Form 214 for the period ending 6 April 2006 shows that he was ordered to active duty under the provisions of 10 U.S.C. 12302 in support of Operation Iraqi Freedom and served for the period 19 June 2005 through 6 April 2006, a total of 292 days.  The form also shows that during this period of active duty, he served in Kuwait and Iraq for a total of 249 days.

12.  United States Army Human Resources Command, Alexandria, Virginia, Orders A-03-607009, dated 22 March 2006, show the applicant was ordered to active duty under the provisions of 10 U.S.C. 12301(D) for the purpose of obtaining 20 years of active federal service under the extended active duty (EAD) sanctuary program in order to retire.  The order instructed the applicant to report to the United States Army Medical Department Activity (MEDDAC) located at Fort Benning, Georgia for duty on 7 April 2006.  The order also specified an active duty commitment of 2 years, 1 month, and 24 days commencing 7 April 2006 and ending 31 May 2008.

13.  United States Army Human Resources Command, Alexandria, Virginia, Orders A-03-60700901, dated 16 October 2007, amended Orders A-03-607009, dated 22 March 2006 to show the applicant's active duty commitment was changed to 1 year, 8 months, and 25 days ending 31 December 2007.

14.  Headquarters, United States Infantry Center, Fort Benning, Georgia, Orders 305-2224, dated 1 November 2007, retired the applicant from the United States Army Reserve effective 31 December 2007.  The applicant's DD Form 214 for the period ending 31 December 2007 shows that he was retired accordingly.

15.  The record shows that the applicant was involuntarily mobilized under the provisions of 10 U.S.C. 12302 during the periods 6 April 2003 through 14 October 2003, 10 December 2003 through 25 November 2005, and 19 June 2005 through 6 April 2006, for a total of 836 days.  The applicant completed 730 cumulative days of mobilization under the provisions of 10 U.S.C. 12302 on 8 November 2005.

16.  The applicant provides a self-authored statement which states, in effect, that he was mobilized and deployed overseas six times since December 2000.  He continues that at no time was he informed that he would become eligible to receive AIP at some point in time.  He adds that during his deployment (19 June 2005 through 6 April 2006), he submitted a request for retroactive AIP, but no action was taken on his request.  The applicant further states that an individual at Fort McCoy, Wisconsin informed him that he was eligible to receive AIP provided he had Headquarters, United States Army Special Operations Command, Fort Bragg, North Carolina Order R344-16 and Headquarters, First United States Army, Forest Park, Georgia, Permanent Orders 144-17(Change 1) amended to reflect authorization for AIP.  The applicant also provides a listing of the dates of his mobilizations and deployments.

17.  An advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff G-1, who opined that the applicant was not eligible to receive COTTAD AIP for the period he requested.

18.  The Chief, Compensation and Entitlements Division, in effect, acknowledged that the applicant served three mobilizations under the authority of 10 U.S.C. 12304 and three mobilizations under the authority of 10 U.S.C. 12302.  The Chief, Compensation and Entitlements Division further opined that the applicant must have been mobilized with a unit and required to request participation in the AIP program under the provisions of 10 U.S.C. 12301(d) in order to complete 12 months BOG in the Iraqi theater with his unit.  He concluded that this does not appear to be the case in the applicant's situation and determined that the applicant is not entitled to receive AIP.

19.  In compliance with 10 U.S.C. 1556 - Ex parte communications statute, Department of the Army, Army Review Boards Agency, Case Management Division, Arlington, Virginia letter, dated 30 January 2008, informed the applicant that his case was being placed on hold for 30 days to afford him an opportunity to submit a rebuttal to the advisory opinion rendered by the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff G-1.  A copy of the advisory opinion was enclosed with the letter.

20.  In response, the applicant submitted a two-page self-authored letter disputing, in effect, disputing the Chief, Compensation and Entitlements Division's opinion that he was not eligible to AIP because he never submitted a request for voluntary extension of his deployment to complete 12 months BOG with his unit.  The applicant continues that Reserve physicians typically serve 90 day BOG tours and usually join their units long after they have arrived in theater because their services are generally not needed during initial mobilization.  He further adds that physicians rotate in and out of theater unless they volunteer to extend their tours.  The applicant states that he never mobilized for a unit's entire mobilization, deployment, and demobilization.  He reiterates his contention that he was never advised on the eligibility parameters for AIP.  The applicant concludes that due to the atypical mobilization patterns of physicians, he should be granted an exception to policy for receipt of AIP.

21.  Department of the Army Personnel Policy Guidance paragraph 
10-3 provides that Reserve Component Soldiers who voluntarily request to serve beyond their 24-month mobilization authorized under the provisions of Title 10 of United States Code may request an extension under the policy guidance for Contingency Operation Temporary Tours of Active Duty (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).

22.  Department of the Army Personnel Policy Guidance 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 Deputy Chief of Staff G-1 approval prior to HRC-A publishing orders.


23.  Department of the Army Personnel Policy Guidance 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 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 United States Code, 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.

24.  Department of the Army Personnel Policy Guidance, in pertinent part, states that orders will not be automatically amended or backdated for the purpose to qualify a Soldier to receive AIP, unless it is proven an administrative error on behalf of the Government.

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 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 was carefully considered and determined to be without merit.

2.  The intent of the AIP program is to provide an incentive for Soldiers to voluntarily extend their involuntary mobilization under the provisions of 10 U.S.C. 12302 in order to complete 365 days BOG with their units in the Iraqi theater and/or compensate those Soldiers whose BOG periods are involuntarily extended beyond 365 days.

3.  The applicant's record shows that he neither submitted a request for voluntary extension of his involuntary mobilization under the provisions of 10 U.S.C. 
12302 in order to complete 12 months BOG with his unit in the Iraqi theater nor were either of his BOG periods involuntarily extended beyond 365 days.  In fact, on both occasions, he redeployed several months prior to the end of his unit's 365 days BOG periods.  Therefore, he did not fulfill the basic eligibility criteria for the AIP program.

4.  By the applicant's own admission, the nature of his mobilizations do not meet the established criteria for AIP eligibility.

5.  Based on applicable law and regulation the applicant is not authorized to participate in the AIP program unless it can be verified that he has fulfilled the minimum requirements outlined in the Department of the Army Personnel Policy Guidance which, in pertinent part, states that COTTAD AIP policy applies to Soldiers in specific categories.  The applicant's record shows that he does not meet the criteria for any of the six categories.

6.  Department of the Army Personnel Policy Guidance, in pertinent part, states that orders will not be automatically amended or backdated for the purpose to qualify a Soldier to receive AIP, unless it is proven an administrative error on behalf of the Government.  The applicant has failed to show the existence of an error or an injustice in his record.  Based on the foregoing, it would be inappropriate in this case to amend the applicant's record to show that he is entitled to receipt of AIP.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X_____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




       _    ___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)                                         AR20070012890



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20070012890



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1