IN THE CASE OF:	  

		BOARD DATE:	        26 August 2008

		DOCKET NUMBER:  AR20080008122 


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 mobilization orders 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 copies of orders to active duty, deployment orders, two DD Forms 214 (Certificate of Release or Discharge from Active Duty), and a DD Form 215 (Correction to DD Form 214) as additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he is currently serving in the Puerto Rico Army National Guard.  The applicant currently holds the military occupational specialty 11A (Infantry Officer) and the rank of major (MAJ)/pay grade O-4.


2.  Puerto Rico State Area Command, Army National Guard, San Juan, Puerto Rico Orders 043-437, dated 19 February 2003, show that the applicant was ordered to active duty under the provisions of 10 U.S.C. 12302 in support of Operation Noble Eagle on 21 February 2003 for a period not to exceed 365 days.

3.  Puerto Rico State Area Command, Army National Guard, San Juan, Puerto Rico Orders 014-42, dated 27 January 2004, amended Orders 043-437 to extend the applicant's period of active duty from 13 February 2004 to 13 February 2005.

4.  XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina Orders 
191-0331, dated 9 July 2004, released the applicant from active duty effective 28 September 2004.

5.  The applicant's DD Form 214 for the period ending 24 September 2004, 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 14 February 
2003 through 24 August 2004, a total of 558 days.

6.  DD Form 215, dated 4 October 2005, in pertinent part, corrected the applicant's DD Form 214 for the period ending 24 September 2004 to show he was released from active duty effective 28 September 2004 and increased his period of active duty to 593 days.

7.  Puerto Rico National Guard Element, Joint Forces Headquarters, San Juan, Puerto Rico Orders 175-019, dated 9 September 2005, show that the applicant was ordered to active duty under the provisions of 10 U.S.C. 12302 in support of Operation Enduring Freedom as an Embedded Tactical Trainer of the Afghan National Army (ANA) on 15 September 2005 for a period not to exceed 172 days.

8.  United States Army Human Resources Command, Alexandria, Virginia Orders A-10-522151, dated 25 October 2005, show that the applicant was ordered to active duty under the provisions of 10 U.S.C. 12301(d) in Contingency of Operation Temporary Tour of Active Duty (COTTAD) support of Operation Enduring Freedom on 28 January 2006 for a period not to exceed 373 days with a projected ending date of 4 February 2007.

9.  The applicant's DD Form 214, for the period ending 20 November 2006, 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 of 15 September 2005 through 20 November 2006, a total of 432 days.  This DD Form 214 also shows the applicant served in Afghanistan for the period 25 October 2005 through 20 November 2006, a total of 392 days boots on ground (BOG).

10.  The record shows that the applicant was involuntarily mobilized under the provisions of 10 U.S.C. 12302 during the periods 14 February 2003 through 28 September 2004 and 15 September 2005 through 20 November 2006, for a total of 1025 days.  He was then voluntarily mobilized under the provisions of 10 U.S.C. 12301(d) during the period 7 February 2005 through 31 May 2006.  The applicant completed 730 cumulative days of mobilization under the provisions of 10 U.S.C. 12302 on 28 January 2006.

11.  An advisory opinion was obtained from the Chief, Personnel Division of the National Guard Bureau.  The Chief, Personnel Division recommended that the application be approved.

12.  The Chief, Personnel Division opined that based on the guidance from the Under Secretary of Defense and the President of the United States involuntary mobilization authorization, Reserve Component Soldiers can only be involuntarily mobilized for 730 days in 10 U.S.C. 12302 status.  It was further opined that the applicant was involuntarily mobilized during the period 14 February 2003 through 28 September 2004, for 593 days in 10 U.S.C. 12302 status.  The applicant was mobilized a second time from 15 September 2005 through 20 November 2006 for 432 days in 10 U.S.C. 12302 status, bringing him to a combined total of 1025 days in 10 U.S.C. 12302 status.  The Chief, Personnel Division opined the applicant's second involuntary mobilization in 10 U.S.C. 12032 status should have been for the period 15 September 2005 through 28 January 2006.  He concluded the applicant should have been issued voluntary COTTAD mobilization orders under 10 U.S.C. 12301(d) which commenced on 
29 January 2006 and continued through 20 November 2006 for a total of 295 days of AIP status.

13.  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 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).

14.  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 DCS G-1 approval prior to HRC-A publishing orders.

15.  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.

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 10 U.S.C. 12302, that he was voluntarily mobilized under the provisions of 10 U.S.C. 12301(d) for any days in excess of 730, and that he is authorized to receive payment of retroactive entitlements associated with AIP were carefully considered and determined to have merit.

2.  Evidence shows that the applicant was involuntarily mobilized for 1025 days during the periods 14 February 2003 through 28 September 2004 and 15 September 2005 through 20 November 2006.  Based on applicable law and regulation the applicant is only authorized to be involuntarily mobilized for a total of 730 days.  As a result, his second involuntary mobilization should have ended on 28 January 2006 to complete his 730 days of mobilization in 10 U.S.C. 12302 status.  Additionally, the applicant should have been issued voluntary mobilization orders which commenced on 29 January 2006 and continued through 20 November 2006.

3.  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 14 February 2003 through 28 September 2004 and 15 September 2005 through 28 January 2006 and voluntarily mobilized under the provisions of 10 U.S.C. 12301(d) during the period 29 January 2006 and continued through 20 November 2006.

4.  Additionally, the applicant is entitled to payment of $1000.00 a month of AIP during the periods that he was voluntarily serving under the provisions of 10 U.S.C. 12301(d).  As a result it would be appropriate that the Defense Finance and Accounting Department pay the applicant all AIP benefits entitled during the period 29 January 2006 and continued through 20 November 2006 and if entitled, any additional periods of voluntary mobilization on COTTAD orders after 20 November 2006 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 periods 14 February 2003 through 28 September 2004 and 15 September 2005 through 28 January 2006;

	b.  he was voluntarily mobilized under the provisions of 10 U.S.C. 12301(d) during the period 29 January 2006 and continued through 20 November 2006, the date of his release from active duty in support of Operation Enduring 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)                                         AR20080008122





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ABCMR Record of Proceedings (cont)                                         AR20080008122



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