IN THE CASE OF:	  

		BOARD DATE:	  5 February 2009

		DOCKET NUMBER:  AR20080009553 


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 Operation for Active Duty Operational Support (CO-ADOS) [formerly referred to as Contingency of Operation Temporary Tour of Active Duty (COTTAD)] 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 Title 10, U.S. Code, section 12302) [involuntary mobilization] and that he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d)) for any days in excess of 730.  He concludes that in spite of numerous attempts on his part, failure to correct his mobilization orders in a timely fashion prevented him from being able to request AIP prior to the established deadline.

3.  The applicant provides a copy of his mobilization orders, two DD Forms 214 (Certificate of Release or Discharge from Active Duty), his CO-ADOS request, his AIP request, electronic mail correspondence, a Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statement (LES), and excerpts from the Department of the Army Personnel Planning Guidance as evidence in support of this application.


CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he is a member of the United States Army Reserve assigned to Detachment 34 of the U.S. Army Civil Affairs and Psychological Operations Command (USACAPOC) (Airborne) based at Fort Bragg, North Carolina.  He currently holds the rank of master sergeant (MSG)/pay grade E-8.

2.  The applicant's DD Form 214 for the period ending 22 February 2005 shows that he was ordered to active duty under the provisions of Title 10, U.S. Code, section 12302 in support of Operation Iraqi Freedom and that he served for the period from 7 December 2003 through 22 February 2005, a total of 444 days.  This form also shows the applicant served in Kuwait and Iraq for the period 11 February 2004 through 21 January 2005, a total of 346 days.

3.  USACAPOC (A), Fort Bragg, North Carolina, Orders 06-338-00031, dated 4 December 2006, show the applicant was involuntarily ordered to active duty as a member of Detachment 1 of the 431st Civil Affairs Battalion in support of Operation Iraqi Freedom with a report date of 9 December 2006 for a period not to exceed 545 days.

4.  USACAPOC (A), Fort Bragg, North Carolina, Orders 07-020-00036, dated 20 January 2007, revoked Orders 06-338-00031, dated 4 December 2006.

5.  USACAPOC (A), Fort Bragg, North Carolina, Orders 07-020-00038, dated 20 January 2007, show the applicant was released from his current assignment and reassigned to Detachment 2 of the 425th Civil Affairs Battalion, based in Santa Barbara, California, effective 20 January 2007.

6.  USACAPOC (A), Fort Bragg, North Carolina, Orders 07-020-00040, dated 20 January 2007, show the applicant was involuntarily ordered to active duty as a member of his unit in support of Operation Iraqi Freedom with a report date of 9 December 2006 for a period not to exceed 507 days.

7.  The applicant provides copies of electronic mail correspondence exchanged between a mobilization officer at the 77th Regional Readiness Command and himself during the period 13 February 2007 through 16 February 2007.  This correspondence shows, in effect, that the applicant inquired about the status of his COTTAD request.  The mobilization officer acknowledged that she had received documentation from the applicant "several months" prior and informed him that it was the responsibility of his higher headquarters (USACAPOC (A)) to process his COTTAD.

8.  U.S. Army Special Operations Command (USASOC), Fort Bragg, North Carolina, Orders R073-110, dated 14 March 2007, deployed the applicant as a member of his unit in support of Operation Iraqi Freedom for a period of 365 days beginning on or about 19 March 2007.

9.  The applicant provides a DFAS LES with a check date of 1 May 2008.  The Remarks section of the LES contains an entry that states, "SM [Service member] not entitled to AIP.  SM falls under new AIP.  CO-ADOS orders cut after 070615 [15 June 2007].  For new SIP you have to have 12 months BOG [boots on ground] and then extend 3-5 months in country."

10.  The applicant provides copies of electronic mail correspondence exchanged between a mobilization operations specialist at USACAPOC (A) and himself during the period 29 May 2007 through 31 May 2007.  This correspondence shows, in effect, that the applicant informed the mobilization operations specialist that he was approaching 24 months of accrued involuntary mobilization time (including his previous mobilization) and inquired about the status of his previously submitted COTTAD request.  The mobilization operations specialist informed the applicant that she would be sending him a [DA Form] 4187
(Personnel Action) that need to be signed by an O-6 [colonel (COL)/pay grade
O-6) in the deployed theater and the new volunteer statements that needed to accompany his request.

11.  On 15 June 2007, All Army Activities (ALARACT) Message 137/2007, in pertinent part, announced that the Army policy for authorizing AIP for Reserve Soldiers since 7 August 2004 was superseded by the new policy effective 15 June 2007.  The message, in pertinent part, states that the Army's policy for AIP eligibility changed from 24 months of cumulative involuntary service under Title 10, U.S. Code, section 12302 status to 24 months of consecutive involuntary service under Title 10, U.S. Code, section 12302 status.  The message also states that all AIP agreements entered prior to the effective date of this message will be honored; however, any new AIP agreements will be subject to the new policy.

12.  The applicant provides a copy of a Volunteer/Waiver statement, dated 2 July 2007, that shows he volunteered for an OCONUS (outside the continental U.S.) CO-ADOS tour.  This document also shows the applicant waived the normal
30-day notification period for activation, and certified that mobilization within the 30-day window would not cause him or his family any undue personal, employment, or financial hardship.


13.  The applicant provides a copy of a DA Form 4187, initiated on 2 July 2007.  This form shows the applicant volunteered for an OCONUS CO-ADOS tour.  This form also shows the applicant's request was approved by a lieutenant colonel (LTC)/pay grade O-5 on 5 July 2007.

14.  Department of the Army, United States Army Human Resources Command, Alexandria (HRC-A), Virginia, Orders A-10-720772, dated 12 October 2007, show the applicant was ordered to active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d) for the purpose of providing CO-ADOS in support of Operation Iraqi Freedom with a reporting date of 21 September 2007 for a period of 7 months and 8 days including accumulated leave.  The order also indicates the applicant should be released from active duty no later than 28 April 2008 [for a total of 221 days of mobilization].

15.  The applicant provides a copy of a DA Form 4187, initiated on 22 December 2007.  This form shows the applicant requested AIP payment at the rate of $1,000.00 per month in return for voluntarily extending his mobilization.  This form shows the applicant's period of eligibility for receipt of AIP would be from 21 September 2007 through 28 April 2008.  This form also shows the applicant's request was verified by a LTC on 22 December 2007.

16.  The applicant's DD Form 214 for the period ending 16 April 2008 shows that he was ordered to active duty under the involuntary provisions of 10 U.S.C. 12302 in support of Operation Iraqi Freedom and that he served for the period from 9 December 2006 through 16 April 2008, a total of 495 days.  This form also shows the applicant served in Kuwait and Iraq for the period 20 March 2007 through 2 March 2008, a total of 349 days.

17.  The applicant provides copies of electronic mail correspondence exchanged between a military pay technician at the U.S. Army Reserve Pay Center located at Fort McCoy, Wisconsin, and himself on 28 April 2008.  This correspondence shows, in effect, that the applicant informed the military pay technician that he believed he was entitled to AIP under the old provisions for 24 months of accrued involuntary mobilization time because he was mobilized over 6 months prior to the new policy being announced.

18.  The applicant provides 3 pages extracted from the Department of the Army Personnel Planning Guidance which show the differences between the AIP policies in effect before and after 15 June 2007.



19.  The record shows that the applicant was involuntarily mobilized during the period 7 December 2003 through 22 February 2005, a total of 444 days.  The applicant was involuntarily mobilized once again for the period 9 December 2006 through 16 April 2008, a total of 495 days; bringing him to a grand total of 939 days of involuntary mobilization.  The applicant completed 730 cumulative days of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302 on 20 September 2007.

20.  An advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff (DCS), G-1, who opined that there was an error on the involuntary mobilization orders issued to the applicant on 20 January 2007.  The Chief, Compensation and Entitlements Division, further opined that the applicant should have been issued COTTAD orders for the period 21 September 2008 [should be 2007] through 28 April 2008 [should be 16 April 2008, the applicant's date of release from active duty].  The Chief, Compensation and Entitlements Division, further opined that the applicant should have been authorized AIP upon completion of his 22nd month of involuntary mobilization commencing on 21 July 2007.  The Chief, Compensation and Entitlements Division, in effect, concluded that this error was not the fault of the Soldier, that he should not be penalized, and that the applicant should be paid all entitlements associated with AIP during his period of eligibility.

21.  Department of the Army Personnel Policy Guidance, in effect at the time of the applicant's mobilization, paragraph 10-3, provided that Reserve Component Soldiers who voluntarily requested to serve beyond their 24-month mobilization authorized under the provisions of Title 10, U.S. Code could request an extension under the policy guidance for COTTAD.  Soldiers transitioning without a break in service would not go through REFRAD processing 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 Title 10, U.S. Code, section 12302 to voluntary COTTAD orders under the provisions of Title 10, U.S. Code, section 12301(d).

22.  Department of the Army Personnel Policy Guidance, in effect at the time of the applicant's mobilization, stated that COTTAD requests would 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 could request COTTAD orders totaling 1095 days.  Requests beyond authorized durations required DCS G-1 approval prior to 
Human Resources Command-Alexandria publishing orders.

23.  Department of the Army Personnel Policy Guidance, in effect at the time of the applicant's mobilization, stated that the COTTAD policy applied to Soldiers in the following categories:
	
	Category 1:  Applies to Soldiers preparing for mobilization who do not have sufficient partial mobilization authority under Title 10, U.S. Code, section 12302 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 (Outside the continental U.S. in the Central Command's area of responsibility).

	Category 2:  Applies to Soldiers mobilized under the provisions of Title 10, U.S. Code, section 12302, 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 Title 10, U.S. Code, section 12302, 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 Title 10, U.S. Code, section 12302, 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.  The term COADOS is the Army's new terminology for what used to be known as a COTTAD.  The terms are synonymous and in both cases, the tour of duty is considered to be on a voluntary basis.

25.  The Secretary of Defense directed the services to establish programs to compensate and or incentivize individuals in both the active and Reserve components who are required to mobilize or deploy early or often, or to extend 

beyond the established rotation policy goals.  In response to this directive, Department of the Army Personnel Policy Guidance paragraph 8-3 (Military Pay and Allowances) provides, in pertinent part, guidance for receipt of both voluntary and involuntary AIP:

	a.  Soldiers or units who are involuntarily extended by the Secretary of Defense beyond 12 consecutive months BOG or 12 out of 15 months (365 days out of 450 days) and are deployed to Iraq (to include staging time in Kuwait) or Afghanistan are eligible for involuntary AIP.  Additionally, Soldiers assigned to theater units not based in Iraq or Afghanistan who routinely conduct operations in Iraq or Afghanistan and whose unit has been involuntarily extended beyond 12 consecutive months are eligible for involuntary AIP.  The Combatant Commander will determine to which specified units and other certain theater units this program applies.  Involuntary AIP is not prorated.  Soldiers receive the entire month’s pay for each portion of a month served.  Soldiers will be eligible for this incentive until they leave the area of responsibility.  These payments will stop the day the Soldier is no longer entitled to Hostile Fire Pay.

	b.  Soldiers who volunteer to remain on active duty beyond the 24 month [730 days] mobilization authorized under the involuntary provisions of Title 10, U.S. Code, section 12302 and to serve under the provisions of Title 10, U.S. Code, section 12301(d) on an extended tour up to 12 additional months or to be reassigned to another unit upon completion of 12 months BOG in Iraq, Afghanistan, or certain theater units for up to 12 additional months are eligible for voluntary AIP.  Voluntary AIP is prorated. Soldiers will be eligible for this incentive until they complete the period of active duty for which they volunteered or until they are released from active duty, whichever occurs first.  National Guard Soldiers can only extend with the consent of the Governor.

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 Title 10, U.S. Code, section 12302 and that he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12031(d) for any days in excess of 730 were carefully considered and determined to have merit.

2.  Evidence shows that the applicant was involuntarily mobilized for 939 days during the periods 7 December 2003 through 22 February 2005 and 9 December 2006 through 16 April 2008.  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 second involuntary mobilization should have ended on 20 September 2007.  Additionally, his initial voluntary COTTAD orders should have commenced on 20 September 2007 and continued through 16 April 2008.

3.  The Secretary of Defense directed the establishment of a new program to compensate or incentivize individuals in both the active and Reserve components who are required to mobilize or deploy early or often, or to extend beyond the established rotation policy goals on 19 January 2007; the new policy was announced in ALARACT Message 137/2007 which was released on 15 June 2007.  The Army's policy for AIP eligibility changed from 24 months of cumulative involuntary service under Title 10, U.S. Code, section 12302 status to 24 months of consecutive service under Title 10, U.S. Code, section 12302 status.  The message also states that all AIP agreements entered prior to the effective date of this message will be honored; however, any new AIP agreements will be subject to the new policy.

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 Title 10, U.S. Code, section 12302 during the periods 7 December 2003 through 22 February 2005 and 9 December 2006 through 20 September 2007 and voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 20 September 2007 through 16 April 2008.

5.  Additionally, the applicant is entitled to prorated payment of $1,000.00 a month of AIP during his period of AIP eligibility.  As a result it would be appropriate that the Defense Finance and Accounting Service pay the applicant all AIP benefits entitled during the period 21 September 2007 through 16 April 2008.

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 Title 10, U.S. Code, section 12302 during the periods 7 December 2003 through 22 February 2005 and 9 December 2006 through 20 September 2007;

	b.  he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 21 September 2007 through 16 April 2008; and

	c.  he is entitled to be paid all benefits associated with Assignment Incentive Pay during the period that he was voluntarily mobilized under Title 10, U.S. Code, section 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)                                         AR20080009553



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ABCMR Record of Proceedings (cont)                                         AR20080009553



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