IN THE CASE OF:	  

		BOARD DATE:	 7 May 2009 

		DOCKET NUMBER:  AR20080017579 


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 for Active Duty Operational Support
(CO-ADOS) [also known as 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 Title 10, U.S. Code, section 12302 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.  The applicant further states that his CO-ADOS orders should have been amended based upon the amount of time that he spent in medical holdover status instead of being revoked.  The applicant concludes that although he
volunteered for an active duty extension in return for receipt of AIP, the revocation of his CO-ADOS orders caused him to become ineligible for his entitlements.

3.  The applicant provides copies of three DD Forms 214 (Certificate of Release or Discharge from Active Duty), a DD Form 215 (Correction to DD Form 214), a reconstructed AIP payment request, three mobilization orders, a retention order, and six amendment orders as documentary evidence in support of this application.


CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he is a member of the South Carolina Army National Guard (SCARNG).  He is assigned to Company B, 1st Battalion of the 118th Infantry Regiment based in Fountain Inn, South Carolina.  He currently possesses primary military occupational specialty (MOS) 11B (Infantryman) and holds the rank of specialist (SPC)/pay grade E-4.

2.  The applicant's DD Form 214 for the period ending 11 October 2003 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 1 November 2002 through 11 October 2003, a total of 345 days.  This DD Form 214 also shows the applicant served in Bosnia and Germany for the period 22 January 2003 through 25 September 2003, for a total of 247 days overseas.

3.  State of South Carolina Military Department, Office of the Adjutant General, Columbia, South Carolina, Orders 021-162, dated 21 January 2007, ordered the applicant to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Enduring Freedom effective 29 January 2007 for a period not to exceed 385 days.  Orders 193-199, dated 12 July 2007, from the same orders issuing authority, ultimately amended the period of active duty to read 29 January 2007 through 25 March 2007 (Medical Hold effective 26 March 2007) (Confirms verbal order from the Adjutant General of South Carolina).

4.  U.S. Army Human Resources Command (USAHRC), Alexandria, Virginia, Orders A-03-707121, dated 26 March 2007, retained the applicant on active duty under the provisions of Title 10, U.S. Code, section 12301(h), effective 26 March 2007 for a period of 5 months and 26 days.  The purpose of these orders was to allow the applicant to voluntarily participate in the Reserve Component Medical Holdover Medical Retention Processing Program for completion of medical care and treatment.  The additional instructions portion of these orders, in pertinent part, stated that early separation/release from active duty was required upon completion of medical care and treatment or for separation by reason of physical disability.

5.  The applicant's DD Form 214 for the period ending 24 May 2007 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 29 January 2007 through 24 May 2007, a total of 116 days.  This DD 

Form 214 also shows the applicant served under the Reserve Component Medical Holdover Medical Retention Processing Program in accordance with Title 10, U.S. Code, section 12301(d) [should be "h"], Title 10, U.S. Code, section 1074(a), and Title 10, U.S. Code, section 12322 from 29 January 2007 through 20 September 2007 [which is nearly 4 months beyond the period covered by the DD Form 214].

6.  A DD Form 215, dated 29 February 2008, corrected the applicant's DD Form 214 for the period ending 24 May 2007 to show that he was ordered to active duty in support of Operation Enduring Freedom in accordance with Title 10, U.S. Code, section 12302 for the period 29 January 2007 through 25 March 2007 and that he served under the Reserve Component Medical Holdover Medical Retention Processing Program in accordance with Title 10, U.S. Code, section 12301(h) for the period 26 March 2007 through 24 May 2007.

7.  USAHRC, Alexandria, Orders A-03-706350, dated 21 March 2007, ordered the applicant to active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d) in CO-ADOS in support of Operation Enduring Freedom effective 18 February 2008 for a period of 5 months and 9 days.  These orders were subsequently revoked by Orders A-03-706350R, dated 15 October 2007, from the same orders issuing authority.

8.  State of South Carolina Military Department, Office of the Adjutant General, Columbia, South Carolina, Orders 149-076, dated 29 May 2007, ordered the applicant to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Enduring Freedom effective 29 May 2007 for a period not to exceed 330 days.  Orders 232-054, dated 19 August 2008, from the same orders issuing authority, ultimately amended the period of active duty to read:  29 May 2007 through 17 February 2008 (Confirms verbal order from the Adjutant General of South Carolina).

9.  The applicant's DD Form 214 for the period ending 5 July 2008, 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 in that status for the period 29 May 2007 through 17 February 2008, a total of 265 days.  This document further shows the applicant served on active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d) in CO-ADOS status for the period 18 February 2008 through 5 July 2008, a total of 139 days.  This DD Form 214 also shows the applicant served in Afghanistan for the period 29 June 2007 through 1 May 2008, for a total of 308 days boots on ground (BOG).


10.  The applicant provides a DA Form 4187 (Personnel Action), dated 24 September 2008, indicating that he volunteered for a mobilization extension package.  By doing so, he agreed to serve voluntarily beyond 24 months 
mobilization and remain on active duty under the provisions of Title 10, U.S. Code, section 12301(d) with the understanding that he would be entitled to AIP at the rate of $1,000 for each full month (partial months were to be prorated) that he served in Afghanistan commencing with his 22nd month of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302.

11.  The applicant's DD Forms 214 show that he was involuntarily mobilized under the provisions of Title 10, U.S. Code, section 12302 during the periods 1 November 2002 through 11 October 2003, a total of 345 days; 29 January 2007 through 25 March 2007, a total of 56 days; and 29 May 2007 through 17 February 2008, bringing him to a cumulative total of 666 days of involuntary mobilization.  The applicant's DD Forms 214 also show he served in Afghanistan for the period 29 June 2007 through 1 May 2008, for a continuous total of 308 days BOG.

12.  An advisory opinion, dated 18 December 2008, was obtained from the Chief, Personnel Policy and Readiness Division of the National Guard Bureau.  The advisory official recommended that the application be disapproved.

13.  The advisory official opined that based on the guidance from the Secretary of Defense (SECDEF) and the President of the United States, Soldiers who were assigned or attached to SECDEF approved units for extension beyond 12 months BOG and have been deployed to Iraq (to include staging time in Kuwait) or Afghanistan (or combination of either) for 12 consecutive months and remain in theater past 365 days are eligible for Involuntary AIP.  It does not appear that the applicant completed 12 months BOG and was not in a unit that was involuntarily extended, therefore he did not qualify for AIP under the policy rules for the timeframe in question.  On 23 December 2008, the applicant was provided a copy of this advisory opinion and afforded an opportunity to either concur or dissent with the findings; as of 4 May 2009, the applicant had not responded.

14.  The term, CO-ADOS, 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.  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/CO-ADOS.  Soldiers transitioning without a break in service would not go through REFRAD processing until the end of their COTTAD/CO-ADOS.  Updated COTTAD/
CO-ADOS 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/CO-ADOS orders under the provisions of Title 10, U.S. Code, section 12301(d).

16.  Department of the Army Personnel Policy Guidance, in effect at the time of the applicant's mobilization, stated that COTTAD/CO-ADOS 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/CO-ADOS orders totaling 1095 days.  Requests beyond authorized durations required DCS G-1 approval prior to Human Resources Command-Alexandria publishing orders.

17.  Department of the Army Personnel Policy Guidance, in effect at the time of the applicant's mobilization, stated that the COTTAD/CO-ADOS 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/CO-ADOS 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/CO-ADOS to complete 12 months BOG with their deployed unit.  COTTAD/CO-ADOS 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/CO-ADOS 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/CO-ADOS 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/CO-ADOS 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/CO-ADOS.

18.  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.  The Chief, Personnel Policy and Readiness Division, concluded the applicant was not eligible to receive involuntary AIP entitlements based upon the fact that he did not fulfill the minimum time requirement of 365 days BOG.  The advisory official failed to address the provisions for receipt of voluntary AIP entitlements.

3.  Evidence shows that the applicant was involuntarily mobilized under the provisions of Title 10, U.S. Code, section 12302 during the periods 1 November 2002 through 11 October 2003, 29 January 2007 through 25 March 2007, and 29 May 2007 through 17 February 2008, for a cumulative total of 666 days; which is 64 days less than the authorized maximum of 730 days.  Evidence also shows he served in Afghanistan for the period 29 June 2007 through 1 May 2008, for a continuous total of 308 days BOG; which was 57 days short of the authorized maximum of 365 days.

4.  State of South Carolina Military Department, Office of the Adjutant General, Columbia, South Carolina, Orders 149-076, dated 29 May 2007, ordered the applicant to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Enduring Freedom effective 29 May 2007 for a period not to exceed 330 days [22 April 2008]; which would have enabled him to complete the authorized maximum of 730 days and made him eligible to receive AIP.  Orders 232-054, dated 19 August 2008, from the same orders issuing authority, ultimately amended the period of active duty to read:  29 May 2007 through 17 February 2008, a total of 265 days.  Although the applicant's record does not contain a CO-ADOS Order for the remainder of his active duty tour, his DD Form 214 for the period ending 5 July 2008, shows that he served on active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d) in CO-ADOS status for the period 18 February 2008 through 5 July 2008, a total of 139 days.  It appears the orders issuing authority erroneously issued the applicant's CO-ADOS orders to be effective upon completion of his 22nd month of involuntary mobilization rather than the requisite 24th month.

5.  Evidence shows the applicant's chain of command supported his request for a voluntary extension of his active duty tour in a CO-ADOS status in return for receipt of AIP commencing upon completion of his 22nd month of involuntary mobilization.  Based on applicable law and regulation in effect at the time of his mobilization, the applicant needed to complete 730 days (24 months) of involuntary mobilization in order to be eligible for receipt of AIP.  As a result, Orders 149-076, dated 29 May 2007, which ordered the applicant to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 should have been amended to show a period of active duty from 29 May 2007 through 21 April 2008, a total of 329 days.  This action would have enabled him to complete the authorized maximum of 730 days and made him eligible to receive AIP.  Additionally, his voluntary CO-ADOS orders under the provisions of Title 10, U.S. Code, section 12301(d) should have commenced on 22 April 2008 and continued through 5 July 2008, for a total of 75 days in CO-ADOS status.

6.  Based on the foregoing, it would be appropriate at this time 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 November 2002 through 11 October 2003, 29 January 2007 through 25 March 2007, and 29 May 2007 through 21 April 2008 and voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period from 22 April 2008 through 5 July 2008.  This action will result in the applicant's completion of 22 months of involuntary mobilization on 21 February 2008. 

7.  Additionally, the applicant is entitled to prorated payment of AIP during the period that he served beyond completion of his 22nd month 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 from 22 February 2008 through 5 July 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: 

	a.  showing the applicant was involuntarily mobilized under the provisions of Title 10, U.S. Code, section 12302 during the periods 1 November 2002 through 11 October 2003, 29 January 2007 through 25 March 2007, and 29 May 2007 through 21 April 2008;

	b.  showing he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period from 22 April 2008 through 5 July 2008; and

	c.  paying the applicant all pay entitlements associated with Assignment Incentive Pay during the period that he served subsequent to completion of his 22nd month of involuntary mobilization under Title 10, U.S. Code, section 12302, 22 February 2008 through 5 July 2008.



      __________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)                                         AR20080017579



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ABCMR Record of Proceedings (cont)                                         AR20080017579



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