IN THE CASE OF:	  

		BOARD DATE:	  16 December 2008

		DOCKET NUMBER:  AR20080013791 


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 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 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 his orders to active duty, DD Forms 214 (Certificate of Release or Discharge from Active Duty), COTTAD volunteer packet and a memorandum from the Commander of the 1st Battalion of the 285th Aviation Regiment as additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he is a traditional member of the Arizona Army National Guard assigned to the 1st Battalion of the 285th Aviation Regiment based in Marana, Arizona.


2.  Oregon Military Department, Headquarters, Oregon National Guard, Salem, Oregon Orders 178-263, dated 26 June 2004, show that the applicant was ordered to active duty under the involuntary provisions of 10 U.S.C. 12302 in support of Operation Iraqi Freedom on 28 June 2004 for a period not to exceed 545 days.

3.  The applicant's DD Form 214 for the period ending 30 June 2005, shows he was ordered to active duty under the involuntary provisions of 10 U.S.C. 12302 in support of Operation Iraqi Freedom and served for the period 28 June 2004 through 30 June 2005, a total of 368 days.

4.  Joint Force Headquarters - Arizona, Office of the Adjutant General, Phoenix, Arizona, Orders 076-221, dated 14 April 2006, 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 1 May 2006 for a period not to exceed 730 days.

5.  Headquarters, Task Force Deserthawk, Forward Operations Base Salerno, Afghanistan, Memorandum, dated 24 August 2007, Subject:  Justification for COTTAD Orders for [applicant's name and social security number] shows the applicant's commander requested a COTTAD extension for him to remain on active duty in support of Operation Enduring Freedom.

6.  The applicant's record contains a COTTAD volunteer packet, dated 25 August 2007, which shows that he acknowledged and accepted reassignments in a COTTAD status through the end of his mobilization.  State of Arizona, Department of Emergency and Military Affairs Memorandum, dated 7 December 2007, Subject:  Approval for Arizona Army National Guard Member to Voluntarily Mobilize, shows the applicant's COTTAD request was approved by the Adjutant General of the Arizona Army National Guard.

7.  The applicant's DD Form 214 for the period ending 14 April 2008, shows he was ordered to active duty under the involuntary provisions of 10 U.S.C. 12302 in support of Operation Enduring Freedom and served for the period 1 May 2006 through 14 April 2008, a total of 715 days.  This DD Form 214 also shows the applicant served in Afghanistan for the period 28 January 2007 through 10 January 2008, for a total of 348 days boots on ground (BOG).

8.  The record shows that the applicant was involuntarily mobilized during the period 28 June 2004 through 30 June 2005, a total of 368 days.  The applicant was involuntarily mobilized once again for the period 1 May 2006 through 14 April 2008, for an additional 715 days; bringing him to a grand total of 1083 days of involuntary mobilization.  The applicant completed 730 cumulative days of involuntary mobilization under the provisions of 10 U.S.C. 12302 on 27 April 2007.

9.  1st Battalion of the 285th Aviation Regiment, Marana, Arizona, Memorandum, dated 24 July 2008, Subject:  Justification for Contingency Operations Title Ten Active Duty Orders and Assignment Incentive Pay for [applicant's name and social security number] was rendered by the applicant's battalion commander.  In this memorandum, the applicant's commander, in effect, explains how a series of administrative errors and misinformation resulted in the applicant's failure to receive his AIP entitlements due to no fault of his own.  The commander adds that in spite of the applicant's efforts to submit his request for COTTAD and AIP incentives through his chain of command in a timely manner, he was never paid his entitlement because he was released from active duty prior to the completion of processing his request.

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

11.  The Deputy Chief, Personnel Policy and Readiness 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's second involuntary 
mobilization under the provisions of 10 U.S.C. 12302 should have been for the period of 1 May 2006 through 27 April 2007 to complete 730 days in 12302 status.  It was also opined that the applicant's initial 12301(d) COTTAD order should have commenced on 28 April 2007 and continued through 14 April 2008, for a total of 353 days in AIP eligibility 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 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).

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 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 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 determined to have merit.

2.  Evidence shows that the applicant was involuntarily mobilized for 1053 days during the periods 28 June 2004 through 30 June 2005 and 1 May 2006 through 14 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 27 April 2007.  Additionally, his initial voluntary COTTAD orders should have commenced on 28 April 2007 and continued through 14 April 2008.

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 28 June 2004 through 30 June 2005 and 1 May 2006 through 27 April 2007 and voluntarily mobilized under the provisions of 10 U.S.C. 12301(d) during the period 28 April 2007 through 14 April 2008.

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 Department pay the applicant all AIP benefits entitled during the period 28 April 2007 and continued through 14 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 10 U.S.C. 12302 during the periods 28 June 2004 through 30 June 2005 and 1 May 2006 through 27 April 2007;

	b.  he was voluntarily mobilized under the provisions of 10 U.S.C. 12301(d) during the period 28 April 2007 through 14 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 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)                                         AR20080013791





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ABCMR Record of Proceedings (cont)                                         AR20080013791



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