IN THE CASE OF:	  

		BOARD DATE:	  10 February 2009

		DOCKET NUMBER:  AR20080017575 


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 involuntary mobilization orders, issuance of 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 continues that he believes he is entitled to payment of AIP due to the fact that other members of his team were paid AIP while deployed during the same time period.

3.  The applicant provides a copies of his mobilization orders, two DD Forms 214 (Certificate of Release or Discharge from Active Duty), and a COTTAD Packet Mobilization Days Calculation Sheet as evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he is a member of the West Virginia Army National Guard assigned to the state's Joint Forces Headquarters.  He currently holds the rank of sergeant major (SGM)/pay grade E-9.


2.  State of Minnesota, Department of Military Affairs, Office of the Adjutant General, Saint Paul, Minnesota, Orders 244-001, dated 31 August 2004, involuntarily ordered the applicant to active duty under the provisions of Title 10, U.S. Code, section 12302 in support of Operation Iraqi Freedom effective 5 September 2004 for a period not to exceed 545 days.

3.  The applicant's DD Form 214 for the period ending 28 November 2005, shows he was involuntarily ordered to active duty under the provisions of Title 10, U.S. Code, section 12302 in support of Operation Enduring Freedom and served for the period 5 September 2004 through 28 November 2005, a total of 450 days.  This DD Form 214 also shows the applicant served in Kuwait and Iraq for the period 27 November 2004 through 30 October 2005, for a total of 338 days boots on ground (BOG).

4.  State of West Virginia, Adjutant General's Department, Charleston, West Virginia, Orders 009-317, dated 9 January 2007, involuntarily ordered the applicant to active duty under the provisions of Title 10, U.S. Code, section 12302 in support of Operation Enduring Freedom effective 10 January 2007 for  a period not to exceed 342 days.

5.  State of West Virginia, Adjutant General's Department, Charleston, West Virginia, Orders 320-138, dated 16 November 2007, amended Orders 009-317, dated 9 January 2007, by changing the period of active duty from 10 January 2007 through 17 December 2007 to 10 January 2007 through 20 May 2008.

6.  The applicant's DD Form 214 for the period ending 16 June 2008, shows he was involuntarily ordered to active duty under the provisions of Title 10, U.S. Code, section 12302 in support of Operation Iraqi Freedom and served for the period 10 January 2007 through 16 June 2008, a total of 524 days.  This DD Form 214 also shows the applicant served in Afghanistan for the period 11 April 2007 through 31 March 2008, for a total of 356 BOG.

7.  The record shows that the applicant was involuntarily mobilized during the period 5 September 2004 through 28 November 2005, a total of 450 days.  The applicant was involuntarily mobilized once again for the period 10 January 2007 through 16 June 2008, a total of 524 days; bringing him to a grand total of 974 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 16 October 2007.



8.  The applicant provides a COTTAD Packet Mobilization Days Calculation Sheet that shows, in pertinent part, that he had previously completed 450 days of involuntary mobilization and should only be allowed to complete an additional 280 days of involuntary mobilization in order to avoid exceeding a combined total of 730 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 approved.

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 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 10 January 2007 through 16 October 2007 to complete 730 days in Title 10, U.S. Code, section 12302 status.  It was concluded that the applicant's Title 10, U.S. Code, section 12301(d) COTTAD order should have commenced on 17 October 2007 and continued through 16 June 2008 for a total of 244 days of prorated AIP.  The applicant concurred with the advisory opinion on 14 January 2009.

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 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).

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 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.

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 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.

14.  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.



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 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 974 days during the periods 5 September 2004 through 28 November 2005 and 10 January 2007 through 16 June 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 16 October 2007.  Additionally, his voluntary COTTAD orders should have commenced on 17 October 2007 and continued through 16 June 2008.

3.  The Chief, Personnel Policy and Readiness 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 5 September 2004 through 28 November 2005 and 10 January 2007 through 16 October 2007 and voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 17 October 2007 through 16 June 2008.

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 Department pay the applicant all AIP benefits entitled during the period 17 October 2007 through 16 June 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 5 September 2004 through 28 November 2005 and 10 January 2007 through 16 October 2007;

	b.  he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 17 October 2007 through 16 June 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)                                         AR20080017575



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017575



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1