IN THE CASE OF:	

		BOARD DATE:	  6 January 2009

		DOCKET NUMBER:  AR20080016385 


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 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, 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. 

3.  The applicant provides copies of his orders to active duty, DD Forms 214 (Certificate of Release or Discharge from Active Duty), an AIP volunteer packet, and a memorandum from the Command Sergeant Major of his battalion in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he is a traditional member of the Florida Army National Guard assigned to the 260th Military Intelligence Battalion (Linguist) based in Miami, Florida.  He is currently serving on active duty and holds the rank of staff sergeant (SSG)/pay grade E-6.


2.  The applicant's DD Form 214 for the period ending 16 October 2003 shows he was ordered to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operations Enduring Freedom, Noble Eagle, and Joint Forge and served for the period 1 December 2002 through 16 October 2003, a total of 320 days.  This DD Form 214 also shows the applicant served in Germany and Bosnia for the period 15 January 2003 through 17 September 2003, a total of 246 days.

3.  State of Florida, Department of Military Affairs, Office of the Adjutant General, Saint Francis Barracks, Saint Augustine, Florida, Orders 200-063, dated 20 October 2003, show that the applicant was ordered to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Joint Guard on 17 October 2003 for a period not to exceed 365 days.

4.  The applicant's DD Form 214 for the period ending 2 October 2004 shows he was ordered to active duty under the voluntary provisions of Title 10, U.S. Code, section 12304 in support of Operation Joint Guardian and served for the period 10 October 2003 through 2 October 2004, a total of 359 days.  [The period of
10 through 16 October 2003 was previously accounted for on the applicant's
DD Form 214 for the period ending 16 October 2003 so, this DD Form 214 should indicate he entered active duty on 17 October 2003 and served through
2 October 2004, a total of 352 days.]  This DD Form 214 also shows the applicant served in Kosovo for the period 3 February 2004 through 1 September 2004, a total of 212 days.

5.  DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 23 April 2008, corrected the applicant's DD Form 214 for the period ending 2 October 2004 to show he was actually ordered to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 rather than the voluntary provisions of Title 10, U.S. Code, section 12304.

6.  State of Florida, Department of Military Affairs, Office of the Adjutant General, Saint Francis Barracks, Saint Augustine, Florida, Orders 056-144, dated 30 March 2006, show that the applicant was ordered to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Iraqi Freedom on 31 March 2006 for a period not to exceed 379 days.

7.  The applicant's records contain an AIP volunteer packet, dated 5 November 2006, which shows that, in return for receiving AIP, he volunteered to serve beyond his 24-month mobilization and remain on active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d) in a COTTAD status in order to complete 12 months boots on the ground (BOG) duty in theater.

8.  The applicant's DD Form 214 for the period ending 5 June 2007 shows he was ordered to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Iraqi Freedom and served for the period 31 March 2006 through 5 June 2007, a total of 432 days.  This DD Form 214 also shows the applicant served in Kuwait and Iraq for the period 23 April 2006 through 5 May 2007, a total of 378 days BOG.

9.  The record shows that the applicant was involuntarily mobilized during the periods 1 December 2002 through 16 October 2003, for 320 days; 17 October 2003 through 2 October 2004, for 352 days; and 31 March 2006 through 5 June 2007, for an additional 432 days; bringing him to a grand total of 1104 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 27 May 2006.

10.  260th Military Intelligence Battalion (Linguist), Florida Army National Guard, Miami, Florida, memorandum, dated 8 October 2008, addressed to the Army Review Board, Subject:  Unpaid Assignment Incentive Pay for [applicant's name and last four digits of his social security number], shows, in effect, the Command Sergeant Major requested issuance of COTTAD orders to the applicant in order to correct the applicant's records and facilitate payment of his AIP entitlements.

11.  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 approved.

12.  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 in Title 10, U.S. Code, section 12302 status.  It was further opined that the applicant's second involuntary mobilization should have been for the period of 31 March 2006 through 20 May 2006 to complete 730 days in 12302 status.  It was concluded that the applicant's Title 10, U.S. Code, section 12301(d) COTTAD order should have commenced on 21 May 2006 and continued through 5 June 2007 for a total of 381 days in AIP eligibility status.  [These calculations do not account for the fact that applicant was credited with active duty service during the period of 10 through16 October 2003 on two separate DD Forms 214 so, he actually completed 730 days in Title 10, U.S. Code, section 12302 status on 27 May 2006 and his AIP should have commenced on 28 May 2006 and continued through 5 June 2007 for a total of 374 days in AIP eligibility status.]


13.  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 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 Title 10, U.S. Code, section 12302 to voluntary COTTAD orders under the provisions of Title 10, U.S. Code, section 12301(d).

14.  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.

15.  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 the required BOG period with their units, and voluntarily request a COTTAD in order to complete 12 months BOG with their units (OCONUS 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 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 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 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.

16.  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.

17.  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 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 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'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 1104 days during the periods 1 December 2002 through 16 October 2003, 17 October 2003 through 2 October 2004, and 31 March 2006 through 5 June 2007.  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 May 2006.  Additionally, his voluntary COTTAD orders should have commenced on 28 May 2006 and continued through 5 June 2007.

3.  The Chief, Personnel Division, concluded the applicant should be paid AIP entitlements based upon Army Personnel Policy Guidance for contingency operations in support of the Global War on Terrorism.

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 1 December 2002 through 16 October 2003, 17 October 2003 through 2 October 2004, and 31 March 2006 through 27 May 2006, and voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 28 May 2006 through 5 June 2007.

5.  Additionally, the applicant is entitled to prorated payment of AIP during the period that he was voluntarily serving under the provisions of Title 10, U.S. Code, section 12301(d).  As a result, it would be appropriate that the Defense Finance and Accounting Service pay the applicant all AIP benefits entitled during the period 28 May 2006 through 5 June 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 Title 10, U.S. Code, section 12302 during the periods 1 December 2002 through
16 October 2003, 17 October 2003 through 2 October 2004, and 31 March 2006 through 27 May 2006;

	b.  he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 28 May 2006 through 5 June 2007; 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)                                         AR20080014108



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ABCMR Record of Proceedings (cont)                                         AR20080016385



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