IN THE CASE OF:	  

		BOARD DATE:	  8 January 2009

		DOCKET NUMBER:  AR20080012901 


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, issuance of Contingency Operations 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 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 three DD Forms 214 (Certificate of Release or Discharge from Active Duty), a COTTAD volunteer packet, and orders to active duty as documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was a member of the Illinois Army National Guard.  During his most recent period of mobilization, he was assigned to the 2d Battalion of the 130th Infantry Regiment.  He was honorably discharged from the Illinois Army National Guard and transferred to the United States Army Reserve Control Group (Retired), effective 30 September 2006, in the rank of command sergeant major/pay grade E-9.

2.  Department of Military Affairs, State of Illinois, Springfield, Illinois, Orders 
003-732, dated 3 January 2002, involuntarily ordered the applicant to active duty under the provisions of 10 U.S.C. 12302 in support of Operation Enduring Freedom effective 4 January 2002 for a period not to exceed 365 days.

3.  The applicant's DD Form 214 for the period ending 11 August 2002 shows he was involuntarily ordered to active duty under the provisions of 10 U.S.C. 12302 in support of Operation Enduring Freedom and served for the period 4 January 2002 through 11 August 2002, a total of 220 days.  This DD Form 214 also shows the applicant served in Germany for the period 16 January 2002 through 18 July 2002, for a total of 184 days overseas.

4.  The applicant's DD Form 214 for the period ending 4 January 2005, shows he was involuntarily ordered to active duty under the provisions of 10 U.S.C. 12302 in support of Operation Iraqi Freedom.  This form also shows the applicant served the entire active duty period of 12 August 2002 through 4 January 2005, a total of 877 days, in Active Guard Reserve status under the voluntary provisions of section 502(f) of Title 32, United States Code (32 U.S.C. 502(f)).

5.  The applicant provides a DA Form 1058-R (Application for Active Duty Training for Special Work, Temporary Tour of Active Duty, and Annual Training for Soldiers of the Army National Guard and U.S. Army Reserve), dated 11 December 2004, which shows that he acknowledged and accepted reassignments during the COTTAD period commencing with the completion of the 22nd cumulative month of mobilization under the provisions of 10 U.S.C. 12302 on or about 31 May 2006 for a period of 155 days.

6.  Department of Military Affairs, State of Illinois, Springfield, Illinois, Orders 
364-080, dated 29 December 2004, involuntarily ordered the applicant to active duty under the provisions of 10 U.S.C. 12302 in support of Operation Iraqi Freedom effective 5 January 2005 for a period not to exceed 510 days.

7.  The applicant's DD Form 214 for the period ending 8 May 2006, shows he was involuntarily ordered to active duty under the provisions of 10 U.S.C. 12302 in support of Operation Iraqi Freedom and served for the period 5 January 2005 through 8 May 2006, a total of 489 days.  This DD Form 214 also shows the applicant served in Kuwait and Iraq for the period 17 May 2005 through 27 April 2006, for a total of 334 days of "boots on the ground" (BOG).

8.  The record shows that the applicant was involuntarily mobilized during the period 4 January 2002 through 11 August 2002, a total of 220 days.  The applicant also served a tour of active duty in Active Guard Reserve status under the voluntary provisions of 32 U.S.C. 502(f) during the period 12 August 2002 through 4 January 2005, a total of 877 days.  The applicant was involuntarily mobilized once again for the period 5 January 2005 through 8 May 2006, a total of 489 days; bringing him to a grand total of 709 days of involuntary mobilization.

9.  An advisory opinion was obtained from the Chief, Personnel Policy and Readiness Division of the National Guard Bureau.  The Chief, Personnel Policy and Readiness Division, recommended that the application be disapproved.

10.  The Chief, Personnel Policy and Readiness Division, opined that based on the guidance from the Secretary of Defense and the President of the United States pertaining to involuntary mobilization authorization, Reserve Component Soldiers can only be involuntarily mobilized for 730 days under the provisions of 10 U.S.C. 12302.  It was further opined that the applicant only accrued 709 of the 730 days of involuntary mobilization required in order to be eligible to qualify for receipt of AIP.

11.  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 10 U.S.C. could request an extension under the policy guidance for COTTAD.  Soldiers transitioning without a break in service would not go through release from active duty 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 10 U.S.C. 12302 to voluntary COTTAD orders under the provisions of 10 U.S.C. 12301(d).

12.  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 continental United States (CONUS) locations and 545 days for Soldiers serving outside continental United States (OCONUS) locations.  Soldiers supporting valid Global War on Terrorism requirements could request COTTAD orders totaling 1095 days.  Requests beyond authorized durations required Department of the Army Deputy Chief of Staff G-1 approval prior to Human Resources Command-Alexandria publishing orders.

13.  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 10 U.S.C. 12302 remaining to complete the required BOG period with their units, and voluntarily request a COTTAD in order to complete 12 months of BOG with their units (OCONUS in the Central Command's area of responsibility).

	Category 2:  Applies to Soldiers mobilized under the provisions of 10 U.S.C. 12302, partial mobilization, who are already deployed and request a COTTAD to complete 12 months of 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 10 U.S.C. 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 10 U.S.C. 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 are 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.

14.  The term, Contingency Operations for Active Duty Operational Support (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.

15.  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 of 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 10 U.S.C. 12302 and to serve under the provisions of 10 U.S.C. 12301(d) on an extended tour up to 12 additional months or to be reassigned to another unit upon completion of 12 months of 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 contends 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 and that he was voluntarily mobilized under the provisions of 10 U.S.C. 12031(d) for any days in excess of 730.  He further contends that he should receive payment of retroactive entitlements associated with AIP.  Each of these contentions were carefully considered and determined to lack merit.

2.  Evidence shows that the applicant was involuntarily mobilized for 709 days during the periods 4 January 2002 through 11 August 2002 and 5 January 2005 through 8 May 2006.  The applicant also served a voluntary tour of active duty in Active Guard Reserve status under the voluntary provisions of 32 U.S.C. 502(f) during the period 12 August 2002 through 4 January 2005, a total of 877 days.  The applicant did not complete 730 cumulative days of involuntary mobilization under the provisions of 10 U.S.C. 12302.

3.  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 of serving at least 730 days mobilization under 10 U.S.C. 12302 with 12 months BOG.  In this case, the applicant completed 709 days of cumulative involuntary mobilization which is 21 days less than the requirement.  He also completed 334 days BOG which is 31 days less than the requirement.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

5.  Based on the foregoing, it would be inappropriate 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.

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)                                         AR20080012901





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ABCMR Record of Proceedings (cont)                                         AR20080012901



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