IN THE CASE OF:	  

		BOARD DATE:	         4 JUNE 2009

		DOCKET NUMBER:  AR20080020052 


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) [also known as Contingency Operation for Active Duty Operational Support
(CO-ADOS)] 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 COTTAD 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, his application was rejected due to administrative errors which caused him to become ineligible for AIP entitlements.

3.  The applicant provides copies of four 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, mobilization orders, a retention order, and 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 Mississippi Army National Guard (MIARNG).  He is assigned to Detachment 1, Headquarters and Headquarters Company, 184th Sustainment Command based in Hattiesburg, Mississippi.  He currently possesses primary military occupational specialty (MOS) 88M (Motor Transport Operator) and holds the rank/grade of sergeant first class (SFC)/E-7.

2.  U.S. Army Human Resources Command (USAHRC), Alexandria, Virginia, Orders A-11-411186, dated 5 November 2004, retained the applicant on active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d), effective 4 November 2004, for a period of 179 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 the unexecuted portion of Orders
212-536, dated 30 July 2004, should be rescinded by the publishing headquarters.

3.  Mississippi Military Department, The Adjutant General's Office, Jackson, Mississippi, Orders 116-135, dated 26 April 2005, amended Orders 212-536, which initially ordered the applicant to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 for the period from 25 July 2004 through 14 February 2006.  Orders 116-135 ultimately amended the period of active duty to read from 25 July 2004 through 3 November 2004.

4.  The applicant's DD Form 214 for the period ending 26 April 2005 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 from 25 July 2004 through 3 November 2004, a total of 102 days.  This DD Form 214 also shows the applicant served under the voluntary provisions of Title 10, U.S. Code, section 12301(d) for the period of 4 November 2004 through 26 April 2005, a total of 174 days.

5.  Mississippi Military Department, The Adjutant General's Office, Jackson, Orders 117-003, dated 27 April 2005, ordered the applicant to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 effective 27 April 2005 for a period not to exceed 269 days.


6.  Mississippi Military Department, The Adjutant General's Office, Jackson, Orders 025-152, dated 25 January 2006, amended Orders 117-003, dated
27 April 2005, by changing the period of active duty to read from 27 April 2005 through 26 February 2006.  Orders 066-048, dated 7 March 2006, from the same orders issuing authority, ultimately amended the period of active duty to read from 27 April 2005 through 20 January 2006.

7.  USAHRC, Alexandria, Orders A-01-602101, dated 26 January 2006, ordered the applicant to active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d), effective 21 January 2006 for a period of 1 year with an ending date of 20 January 2007.  The purpose of these orders was to allow the applicant to fulfill active duty requirements under the extended active duty program working in support of hurricanes Katrina and Rita relief efforts.

8.  The applicant's DD Form 214 for the period ending 4 August 2006 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 from 27 April 2005 through 4 August 2006, a total of 465 days.  This DD Form 214 also shows the applicant served in Kuwait and Iraq during the period from 24 June 2005 through 24 December 2005, a total of 184 days boots on ground (BOG).

9.  A DD Form 215, dated 26 August 2006, corrected the applicant's DD Form 214 for the period ending 4 August 2006 to show that he served in Kuwait and Iraq under the involuntary  provisions of Title 10, U.S. Code, section 12302 for the period of 27 April 2005 through 20 January 2006, a total of 269 days; and that he served under the voluntary provisions of Title 10, U.S. Code, section 12301(d) for the period from 21 January 2006 through 4 August 2006, a total of 196 days.

10.  Mississippi Military Department, The Adjutant General's Office, Jackson, Orders 177-021, dated 26 June 2006, ordered the applicant to active duty in support of Operation Iraqi Freedom under the involuntary provisions of Title 10, U.S. Code, section 12302 effective 10 July 2006 for a period not to exceed 300 days.

11.  Mississippi Military Department, The Adjutant General's Office, Jackson, Orders 200-108, dated 19 July 2006, amended Orders 177-021, dated 26 June 2006, by changing the period of active duty to read from 10 July 2006 through
6 October 2007.  The authority cited for this orders was Title 10, U.S. Code, section 12302.


12.  USAHRC, Alexandria, Orders A-08-621585, dated 17 August 2006, ordered the applicant to active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d), effective 5 August 2006 for a period of 519 days with a projected ending date of 5 January 2008.  The purpose of these orders was to serve in COTTAD status in support of Operation Iraqi Freedom.

13.  Mississippi Military Department, The Adjutant General's Office, Jackson, Orders 009-097, dated 9 January 2007, further amended Orders 177-021, dated 26 June 2006, from the same orders issuing authority, by changing the report date to 5 August 2006 and the period of active duty to read from 5 August 2006 through 14 January 2007.  Orders 096-096, dated 6 April 2007, from the same orders issuing authority, ultimately amended the period of active duty to read from 5 August 2006 through 29 July 2007.  The authority cited for this orders was Title 10, U.S. Code, section 12302.

14.  On 19 January 2007, the Secretary of Defense signed a memorandum addressed to the Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, and the Under Secretaries of Defense.  This memorandum shows, in pertinent part, that the Secretary of Defense stated that the planning objective for involuntary mobilization of National Guard and Reserve units will remain a one year mobilized to five years demobilized ratio.  He continued that today's global demands will require a number of selected National Guard and Reserve units to be remobilized sooner than this standard.  This memorandum also shows that he directed the establishment of a new program to compensate 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 ratio policy goals.

15.  USAHRC, Alexandria, Virginia, Orders A-08-621585A01, dated 4 April 2007, amended A-08-621585, dated 17 August 2006, from the same orders issuing authority, by changing the period of active duty to read 1 year, 5 months, and
1 day, including accumulated leave.  This order also amended the purpose to read Contingency Operation for Active Duty Operational Support (CO-ADOS) status in support of Operation Iraqi Freedom.

16.  Mississippi Military Department, The Adjutant General's Office, Jackson, Orders 096-096, dated 6 April 2007, ultimately amended Orders 177-021, dated 26 June 2006, from the same orders issuing authority, by changing the period of active duty to read from 5 August 2006 through 29 July 2007.  The authority cited for this orders was Title 10, U.S. Code, section 12302.


17.  On 15 June 2007, All Army Activities (ALARACT) Message 137/2007, in pertinent part, announced that the Army policy for authorizing AIP for Reserve Soldiers since 7 August 2004 was superseded by the new policy effective 15 June 2007.  The message also stated that all AIP agreements entered prior to the effective date of this message will be honored.

18.  The applicant's DD Form 214 for the period ending 5 January 2008, shows he was voluntarily ordered to active duty under the provisions of Title 10, U.S. Code, section 12301(d) in support of Operation Iraqi Freedom and served in that status for the period from 5 August 2006 through 5 January 2008, a total of 519 days.  This DD Form 214 also shows the applicant served in Iraq for the period from 8 October 2006 through 25 September 2007, for a total of 353 days BOG.

19.  MIARNG, 1687th Transportation Company (Medium Truck), Southaven, Mississippi memorandum, dated 4 February 2008, addressed to the 298th Corps Support Battalion, Philadelphia, Mississippi, Subject:  Request an Amendment, shows a Readiness Noncommissioned Officer (NCO) requested an amendment of the applicant's COTTAD mobilization orders due to no fault of the applicant.  The Readiness NCO stated, in effect, that the applicant's involuntary mobilization time under the provisions of Title 10, U.S. Code, section 12302 had been miscalculated and the information on his COTTAD order was not correct.  The Readiness NCO continued that the applicant volunteered for Mobilization Extension Package and was entitled to receive prorated AIP while deployed from May to September 2007.  The Readiness NCO concluded by stating that an AIP packet could not be submitted without amendment of the COTTAD orders.  A reconstructed COTTAD request was enclosed with this memorandum.

20.  Headquarters, 184th Expeditionary Sustainment Command, Laurel Mississippi memorandum, dated 25 September 2008, addressed to Military Department, State of Mississippi, Attention:  JFH-MS-J1-PA-EPM, Jackson, Mississippi, Subject:  Request Amended COTTAD for [applicant's rank, name, and social security account number], shows the commanding general of the 184th Expeditionary Sustainment Command, requested amendment of the applicant's erroneous COTTAD order, due to no fault of his own.  The general concluded that the COTTAD order was published based upon erroneous data.

21.  The applicant's DD Forms 214 show that he was mobilized under the involuntary provisions of Title 10, U.S. Code, section 12302 during the periods from 25 July 2004 through 3 November 2004, a total of 102 days; and from 
27 April 2005 through 20 January 2006, a total of 269 days; bringing him to a cumulative total of 371 days of involuntary mobilization.  The applicant's DD 

Forms 214 also show that he was mobilized under the voluntary provisions of Title 10, U.S. Code, section 12301(d) during the periods from 4 November 2004 through 26 April 2005, a total of 174 days; from 21 January 2006 through
4 August 2006, a total of 196 days; and from 5 August 2006 through 5 January 2008, a total of 519 days; bringing him to a cumulative total of 889 days of voluntary mobilization.

22.  An advisory opinion, dated 17 March 2009, was obtained from the Chief, Personnel Policy and Readiness Division of the National Guard Bureau.  The advisory official recommended that the application be disapproved.

23.  The advisory official, in effect, opined that prior to 19 January 2007, the Department of Defense was defining the limitation of involuntary mobilization as not in excess of 24 cumulative months, but the Secretary of Defense changed the mobilization for Reserve Soldiers to 24 months consecutive mobilization, effective 19 January 2007.  It was further opined that the applicant only accrued 371 of the 730 days of involuntary mobilization required in order to be eligible to qualify for receipt of AIP.  The advisory official concluded that based on the guidance from the Secretary of Defense in his memorandum, dated 19 January 2007, and the new policy for authorizing AIP, there was no compelling reason to change the applicant's record.  In compliance with Title 10, U.S. Code, section 1556, the applicant was provided a copy of the advisory opinion and afforded an opportunity to submit comments or a rebuttal.

24.  On 4 April 2009, the applicant provided a rebuttal to the advisory opinion.  In his rebuttal, the applicant essentially states that administrative errors during the computation of his involuntary mobilization time resulted in the issuance of COTTAD orders with the wrong effective date.

25.  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.

26.  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 exten-sion 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).

27.  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.

28.  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.

29.  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.  Contrary to the advisory opinion rendered by the Chief, Personnel Policy and Readiness Division, the applicant's contentions that his records should be amended to show that he completed 730 days of involuntary mobilization under 
the provisions Title 10, U.S. Code, section 12302 and that he was voluntarily mobilized under the provisions of 10 U.S.C. 12301(d) for any days in excess of 730 were carefully considered and determined to have merit.

2.  The Chief, Personnel Policy and Readiness Division, opined that based on the guidance from the Secretary of Defense in his memorandum, dated 19 January 2007, and the new policy for authorizing AIP, the applicant was not eligible for AIP.  Although the Secretary of Defense directed the establishment of a new program to compensate 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 on 19 January 2007, the new policy was not announced or effective until ALARACT Message 137/2007 was released on 15 June 2007, over ten months after the applicant's individual mobilization.  Furthermore, the Secretary of Defense's memorandum does not contain any indication that he rescinded the policy pertaining to acknowledging 24 cumulative months of involuntary mobilization under the provisions Title 10, U.S. Code, section 12302 as qualifying for AIP.  Finally, the ALARACT message also stated that all AIP agreements entered prior to the effective date of this message would be honored.

3.  Evidence shows the applicant's chain of command supported his request for a voluntary extension of his active duty tour in a COTTAD 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.  Due to no fault of his own, it appears the orders issuing authority erroneously included the applicant's prior voluntary mobilization time (under the provisions of Title 10, U.S. Code, section 12301(d)) when calculating his cumulative involuntary time (under the provisions of Title 10, U.S. Code, section 12302) prior to issuing his COTTAD orders.  This error resulted in the issuance of U.S. Army Human Resources Command, Alexandria, Virginia, Orders A-08-621585, dated 17 August 2006, which erroneously placed the applicant into voluntary COTTAD status under the provisions of Title 10, U.S. Code, section 12301(d) prior to his completion of the requisite 730 days of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302.

4.  The applicant's chain of command accepted full responsibility for this administrative error and requested issuance of amended orders so the applicant can receive his retroactive AIP entitlements.


5.  Evidence shows the applicant was mobilized under the involuntary provisions of Title 10, U.S. Code, section 12302 for a total of 730 days during the periods from 25 July 2004 through 3 November 2004, a total of 102 days; and from 
27 April 2005 through 20 January 2006, a total of 269 days; bringing him to a cumulative total of 371 days of involuntary mobilization.  Mississippi Military Department, The Adjutant General's Office, Jackson, Orders 177-021, dated
26 June 2006, and subsequent amendments, involuntarily mobilized the applicant under the involuntary provisions of Title 10, U.S. Code, section 12302 for the period from 5 August 2006 through 29 July 2007, a total of 359 days.  This action enabled him to complete the authorized maximum of 730 cumulative days of involuntary mobilization and made him eligible to receive AIP.

6.  As a result, USAHRC, Alexandria, Orders A-08-621585, dated 17 August 2006, which ordered the applicant to active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d) should have been amended to show a period of active duty from 30 July 2007 through 5 January 2008, for a total of 160 days in COTTAD status.

7.  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 period from 5 August 2006 through 29 July 2007 and voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period from 30 July 2007 through 5 January 2008.  This action will result in the applicant's completion of 22 months of involuntary mobilization on 30 May 2007.

8.  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 Service (DFAS) pay the applicant all AIP benefits to which he is entitled during the period from 30 May 2007 through 5 January 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 period from 5 August 2006 through 29 July 2007;

	b.  showing he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period from 30 July 2007 through 5 January 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, from 30 May 2007 through 5 January 2008.



      __________xxx____________
       	   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)                                         AR20080020052



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