IN THE CASE OF:	  

		BOARD DATE:	  9 DECEMBER 2009

		DOCKET NUMBER:  AR20080013392 


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 10 U.S.C. 12301(d) for any days in excess of 730.  The applicant continues that the potential income to be gained from AIP weighed heavily in his decision to volunteer for mobilization.  The applicant concludes that in spite of his numerous attempts to have this oversight corrected, he has yet to receive his AIP entitlements.

3.  The applicant provides copies of his orders to active duty, DD Forms 214 (Certificate of Release or Discharge from Active Duty), a self-authored statement, and a letter addressed to a Member of Congress as documentary evidence in support of this application.


CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he is a traditional member of the Alabama Army National Guard.  He currently holds the rank of lieutenant colonel (LTC)/pay grade O-5 and is assigned to the 62nd Troop Command based in Montgomery, Alabama.

2.  Alabama State Military Department, Personnel Service Branch, Montgomery, Alabama, Orders 213-016, dated 1 August 2002, show that the applicant was ordered to active duty under the involuntary provisions of 10 U.S.C. 12302 in support of Operations Noble Eagle and Enduring Freedom on 1 August 2002 for a period not to exceed 365 days.

3.  The applicant's DD Form 214 for the period ending 5 July 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 1 August 2002 through 5 July 2004, a total of 705 days.

4.  U.S. Army Human Resources Command, Alexandria, Virginia, Orders A-04-608263, dated 7 April 2006, show that the applicant was ordered to active duty for the purpose of providing COTTAD support of Operation Enduring Freedom under the voluntary provisions of 10 U.S.C. 12301(d) effective 4 April 2006 for a period of 520 days.

5.  U.S. Army Human Resources Command, Alexandria, Virginia, Orders A-04-608263A02, dated 4 April 2007, amended Orders A-04-608263, dated 7 April 2006, to show that the applicant was ordered to active duty for the purpose of providing Contingency Operation for Active Duty Operational Support (CO-ADOS) in support of Operation Enduring Freedom under the provisions of 10 U.S.C. 12301(d).  This order also amended the period of active duty to 1 year, 5 months, and 2 days including accumulated leave.

6.  The applicant's DD Form 214, for the period ending 18 May 2007, shows he was ordered to active duty under the voluntary provisions of 10 U.S.C. 12301(d) in support of Operation Enduring Freedom and served for the period 4 April 2006 through 18 May 2007, a total of 410 days.  The DD Form 214 also shows the applicant served in Afghanistan for the period 14 May 2006 through 14 April 2007, a total of 336 days.

7.  The record shows that the applicant was mobilized during the periods 1 August 2002 through 5 July 2004 and 4 April 2006 through 18 May 2007, for a total of 1115 days.  The applicant completed 730 cumulative days of mobilization on 28 April 2006.
8.  The applicant provides a copy of a letter from himself addressed to a U.S. Congressman, in which he essentially requested assistance with correcting his military record in order to receive retroactive payment of AIP.

9.  State Military Department, Joint Force Headquarters, Alabama National Guard, Montgomery, Alabama, Orders 256-458, dated 12 September 2008, show that the applicant was ordered to active duty under the involuntary provisions of 10 U.S.C. 12302 in support of Operation Enduring Freedom on 4 April 2006 for a period not to exceed 25 days.

10.  An advisory opinion was rendered by the Chief, Personnel Division of the Departments of the Army and the Air Force National Guard Bureau, Arlington, Virginia.  The Chief, Personnel Division, acknowledged that an administrative error was made during the applicant's COTTAD processing and recommended that the application be approved.  

11.  The Chief, Personnel Division, opined that the applicant's second mobilization should have been under the authority of 10 U.S.C. 12302 for the period 4 April 2006 through 28 April 2006, a total of 25 days, in order to complete his 730 days of involuntary mobilization.  The Chief Personnel Division, acknowledged that the Alabama Army National Guard, Military Personnel Office, issued an order, dated 12 September 2008, to correct this oversight.  The Chief, Personnel Division, continued that the applicant's voluntary 10 U.S.C. 12301(d) order should have commenced on 29 April 2006 and continued through 18 May 2007 for a total of 384 days of AIP.  The Chief, Personnel Division, added in effect, that under Secretary of Defense guidance and the President of the United States' involuntary mobilization authorization, Reserve Component Soldiers could only be involuntarily mobilized for 730 days in a 12302 status.  

12.  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 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, 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.

14.  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 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 10 U.S.C. 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 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 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.


15.  The term, Contingency Operation for Active Duty Operational Support (COADOS), is the Army's new terminology for what used to be known as a Contingency Operation Temporary Tour of Active Duty (COTTAD).  The terms are synonymous and in both cases, the tour of duty is considered to be on a voluntary basis.

16.  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 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 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 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 and found to be with merit.

2.  Evidence shows that the applicant was mobilized during the periods 1 August 2002 through 5 July 2004 and 4 April 2006 through 18 May 2007, for a total of 1115 days.  Based on applicable law and regulation in effect at the time of his mobilization, the applicant was only authorized to be involuntarily mobilized for a total of 730 days.  As a result, his second involuntary mobilization should have ended on 28 April 2006.  Additionally, his voluntary COTTAD orders should have commenced on 29 April 2006 and continued through 18 May 2007.

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 1 August 2002 through 5 July 2004 and 4 April 2006 through 28 April 2006 and voluntarily mobilized under the provisions of 10 U.S.C. 12301(d) during the period 29 April 2006 and continued through 18 May 2007.

4.  Additionally, the applicant is entitled to payment of AIP during the period 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 Service pay the applicant all AIP benefits to which he is entitled for the period 29 April 2006 through 18 May 2007.

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 1 August 2002 through 5 July 2004 and 4 April 2006 through 28 April 2006; 

	b.  he was voluntarily mobilized under the provisions of 10 U.S.C. 12301(d) during the period 29 April 2006 through 18 May 2007, 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)                                         AR20080013392





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ABCMR Record of Proceedings (cont)                                         AR20080013392



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