IN THE CASE OF:	  

		BOARD DATE:	  24 February 2009

		DOCKET NUMBER:  AR20080019282 


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 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) [voluntary mobilization] for any days in excess of 730.  He concludes that in spite of numerous attempts on his part, failure to correct his mobilization orders in a timely fashion prevented him from receiving his AIP entitlements.

3.  The applicant provides copies of orders to active duty, deployment orders, two DD Forms 214 (Certificate of Release or Discharge from Active Duty), a COTTAD Volunteer Packet, a request for AIP payment, and a request for amended COTTAD orders as additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he is presently serving in the Puerto Rico Army National Guard and is assigned to the 240th Military Police Company.  The applicant currently holds the rank of sergeant (SGT)/pay grade E-5.
2.  Puerto Rico State Area Command, Army National Guard, San Juan, Puerto Rico, Orders 188-045, dated 8 October 2002, 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 Enduring Freedom on 7 October 2002 for a period not to exceed 365 days.

3.  The applicant's DD Form 214 for the period ending 12 September 2003, shows he was ordered to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Enduring Freedom and served for the period 7 October 2002 through 12 September 2003, a total of 341 days.  This DD Form 214 also shows the applicant served in Cuba for the period 15 November 2002 through 25 August 2003, a total of 284 days overseas.

4.  The applicant provides a COTTAD Volunteer Packet, dated 6 August 2006, which shows, in effect, that he acknowledged and accepted reassignments during a COTTAD period commencing upon his completion of 730 days of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302 on or about 30 August 2007 for a period of 156 days.

5.  Puerto Rico National Guard Element, Joint Forces Headquarters, San Juan, Puerto Rico, Orders 148-014, dated 4 August 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 6 August 2006 for a period not to exceed 389 days.

6.  United States Army Human Resources Command, Alexandria, Virginia, Orders A-10-626981, dated 24 October 2006, show that the applicant was ordered to active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d) in COTTAD support of Operation Iraqi Freedom on 2 June 2007 for a period of 245 days with a projected ending date of 1 February 2008.

7.  The applicant provides a request for AIP payment, dated 29 May 2007, which shows, in effect, that he requested to receive AIP at the rate of $1000 per month commencing with his completion of 22 months of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302.  His request was based upon the fact that he volunteered to remain on active duty under the provisions of Title 10, U.S. Code, section 12301(d) beyond his completion of 24 months of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302.

8.  The applicant's DD Form 214, for the period ending 7 December 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 of 6 August 2006 through 1 June 2007, a total of 300 days.  This DD Form 214 also shows the applicant was then voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 2 June 2007 through
7 December 2007, a total of 189 days.  This DD Form 214 also shows the applicant served in Iraq for the period 29 October 2006 through 18 October 2007, a total of 355 days boots on ground (BOG).

9.  The applicant provides a DA Form 4187 (Personnel Action), dated 29 September 2008.  This form shows the applicant's company commander requested amendment of his COTTAD mobilization orders numbered
A-10-626981, dated 24 October 2006, to show a report date of 30 August 2007 and an active duty period of 156 days.

10.  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.

11.  The 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 Title 10 U.S. Code, section 12302 status.  It was further opined that the applicant was involuntarily mobilized during the period 7 October 2002 through 12 September 2003 for of 341 days in Title 10, U.S. Code, section 12302 status.  The applicant was mobilized a second time from 6 August 2006 through 7 December 2007 for 489 days in Title 10, U.S. Code, section 12302 status, bringing him to a combined total of 830 days in Title 10, U.S. Code, section 12302 status.  The Chief, Personnel Policy and Readiness Division, opined the applicant's second involuntary mobilization in Title 10, U.S. Code, section 12032 status should have been for the period 6 August 2006 through 29 august 2007.  He concluded the applicant should have been issued voluntary COTTAD mobilization orders under Title 10, U.S. Code, section 12301(d) which commenced on 30 August 2007 and continued through 7 December 2007 for a total of 100 days of AIP 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 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).

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 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.

15.  The term 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.

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 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 issued involuntary mobilization orders for a cumulative total of 830 days during the periods 7 October 2002 through 12 September 2003 and 6 August 2006 through 7 December 2007.  Based on applicable law and regulation 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 29 August 2007 to complete his 730 days of mobilization in Title 10, U.S. Code, section 12302 status.  Additionally, the applicant should have been issued voluntary mobilization orders which commenced on 30 August 2007 and continued through 7 December 2007.

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 7 October 2002 through 12 September 2003 and 6 August 2006 through 29 August 2007 and voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 30 August 2007 and continued through 7 December 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 Department pay the applicant all AIP benefits entitled during the period 30 August 2007 through 7 December 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 7 October 2002 through 12 September 2003 and 6 August 2006 through 29 August 2007;

	b.  he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 30 August 2007 through 7 December 2007; and

	c.  he 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.