IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20090001068 


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 Consecutive Overseas Tour (COT) entitlements.

2.  The applicant states, in effect, that he served overseas back-to-back tours since 1998 and that Macedonia and Kosovo are hazardous and combat tax exempt locations.  He contends that he was assigned to Naples with duty in Macedonia in October 2004, that he retired on 31 August 2005, and that he was recalled to active duty for one year effective 1 September 2005.  He indicates that in September 2006 his recall to active duty was extended for another year (i.e., 1 September 2007).  He points out that Volume 1 of the Joint Travel Regulation established that an unaccompanied tour length in Macedonia was 
12 months and that since he had been serving in Macedonia since October 2004 he had a total of 2 years, 10 months, and 6 days of continuous unaccompanied overseas active duty service.   

3.  The applicant provides letters from Members of Congress, emails, DD Forms 214 (Certificate of Release or Discharge from Active Duty), a DA Form 4187 (Personnel Action), an Officer Record Brief, orders, assignment instructions, travel orders, excerpts from Army Regulation 600-8-105 (Military Orders), and a DA Form 7301-R (Officer Service Computation for Retirement) in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the U.S. Army Reserve (USAR), the applicant was appointed a second lieutenant in the USAR on 14 May 1977 and entered active duty on 7 August 1977.  He was appointed a first lieutenant in the Regular Army on 5 June 1981 and was promoted to lieutenant colonel on 1 May 1994.

2.  Permanent Change of Station Orders show the applicant was assigned to Naples, Italy with duty in Skopje, Macedonia effective 28 October 2004.  

3.  The applicant retired on 31 August 2005.  

4.  On 1 September 2005, the applicant was recalled to active duty for duty in Skopje, Macedonia for a period of 2 years.      

5.  A DA Form 4187, dated 31 May 2007, shows the applicant requested COT entitlements as an exception to policy.  On 5 June 2007, his commanding officer recommended approval of the applicant's request.

6.  On 3 July 2007, the applicant's request for an exception to policy for COT entitlements was disapproved by the Human Resources Command, Alexandria, Virginia.

7.  On 31 August 2007, the applicant was released from active duty. 

8.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, Washington, D.C.  That office recommends disapproval of the applicant’s request.  The opinion pointed out that Title 37, Section 411b, Travel and transportation allowances: travel performed in connection with leave between consecutive overseas tours, Department of Defense Instruction (DODI) 1327.6, paragraph 6.11.14, Leave in Connection with Consecutive Overseas Assignments, and Army Regulation 614-30 (Overseas Service), chapter 
4 provide specific conditions under which a Soldier would qualify for COT and/or In Place COT (IPCOT) entitlements.  Based on the information provided in the applicant's application he would not qualify for COT or IPCOT entitlements.   
 
9.  The advisory opinion states that Army Regulation 614-30 indicates that Soldiers who complete their initial permanent change of station (PCS) tours, plus any voluntary extensions, will be encouraged to remain at their same permanent duty stations for an IPCOT, which is a second complete tour.  Information in the applicant's packet indicates that he only completed 10 months of an initial 
12 month assignment to Skopje, Macedonia before retirement.  The fact that he was voluntarily recalled to active duty (retiree recall) and assigned to Skopje, Macedonia on two occasions without a break in service does not qualify as a COT/IPCOT PCS assignment.  Soldiers on a retiree recall are "recalled" to active duty and assigned to a particular location/installation for a specific and in most cases a limited period of time, but it is not considered a PCS assignment and is not entitled to COT/IPCOT travel entitlements.  The opinion points out that if the applicant had served ten, one year retiree recalls in Skopje, Macedonia without a break in service, he would still not qualify for COT/IPCOT PCS entitlements.  The opinion states the applicant would not qualify for IPCOT entitlements due to him not completing his initial 12 month tour and retiree recall status for the remaining period of time served in Skopje, Macedonia.    

10.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 19 May 2009, the applicant responded.  In summary, he states that his understanding of Army Regulation 614-30 does not agree with the advisory opinion.  He points out that Rule 1, Table 3-2 (Award of Tour Credit and Adjustment of DEROS [Date Eligible for Return From Overseas]/DROS [Date Returned from Overseas]) of Army Regulation 614-30 states that “if a Soldier serves to within 60 days of completion of the prescribed tour then credit with a completed tour and award a new DROS.”  He states that his prescribed tour officially began on 28 October 2004, that a normal 12-month tour would have ended on 28 October 2005, and that his tour officially ended on 31 August 2005.  He was within 58 days of his prescribed tour on the date of his retirement thereby satisfying Rule 1 as noted above and is in consonance with the regulation for having achieved full tour credit.  He states that this event served as the completion of a COT.  He points out that permanent change of station orders show he was assigned to Skopje, Macedonia and that whether or not he requested reassignment to the same location, or accepted it willingly when it was offered it is of no consequence to the argument and has no place in the discussion of his case.  

11.  The applicant states that since he was ordered out of retirement and retained "in place" with no permanent change of station movement, IPCOT rules should apply.  He contends that Army Regulation 614-30 indicates that he should be given full tour credit for the 10 of 12 months he served and that he was not voluntarily extended but instead was ordered into retirement and released from active duty and assignment.  He states that he was ordered back to active duty and assigned to the same posting, which began a new tour of duty.  He goes on to state that the unaccompanied tour length in Skopje, Macedonia is 
12 months, that he completed one tour of duty on 31 August 2005, that he began a second "in place," on 1 September 2005, and that he began a third consecutive in place tour on 1 September 2006.  He claims that his consecutive tours ended upon him being returned to the retired list on 1 September 2007 per the original order.     


12.  The applicant points out that the Joint Force Commander (JFC) Naples was originally in approval of his request for COT entitlements but he felt he should send this to Brigade for final approval.  He reiterates a colonel's comment that over the course of the 2 recalls and the original PCS (2003 time frame) to Skopje, he was in country well over 2 years.  He contends that service was performed in the best interest of the JFC Command and the U.S. Army with significant saving to the military and the tax payer.  He claims an Inspector General report was succinctly well done to further substantiate validity of his request for COT entitlements. 

13.  The Joint Federal Travel Regulations, Volume I, Appendix Q, Table 
1 established the unaccompanied tour length in Skopje, Macedonia as 
12 months. 

14.  Chapter 4 of Army Regulation 614-30 states, in pertinent part, that unless determined to be immediately available for reassignment, Soldiers who complete their initial tours, plus any voluntary extensions, will be encouraged to remain at their same permanent duty stations for an IPCOT, that is, a second complete prescribed tour.  The regulation also states that to be eligible for a COT Soldiers must not be in receipt of assignment instructions; must be properly utilized according to Army Regulation 614-100 and Army Regulation 614-200 in authorized modification table of organization and equipment (MTOE)/TDA/directed military over-strength (DMO) positions; will have completed their current prescribed tours and agree to serve another full tour, plus COT leave and travel time; and will have sufficient remaining obligated service to serve another full tour at the current or new PDS, plus COT leave and travel time.

15.  Rule 1 of Table 3-2 of Army Regulation 614-30 states that if a Soldier serves to within 60 days of completion of the prescribed tour then credit with a completed tour and award a new DROS. 

16.  Title 37, U. S. Code, section 411b, states that under uniform regulations prescribed by the Secretaries concerned, a member of a uniformed service stationed outside the continental United States who is ordered to a consecutive tour of duty at the same duty station or who is ordered to make a change of permanent station to another duty station outside the continental United States may be paid travel and transportation allowances in connection with authorized leave from his last duty station to a place approved by the Secretary concerned and from that place to his designated post of duty.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was within 58 days of his prescribed tour on the date of his retirement which thereby satisfies Rule 1, Table 3-2 of Army Regulation 614-30 for having achieved full tour credit was considered.  However, this rule applies to Soldiers who have actually returned from overseas.  The applicant did not return from his initial overseas tour in Skopje, Macedonia; therefore, he was required to complete 12 months of service in Skopje. 

2.  The governing regulation states that to be eligible for a COT Soldiers will have completed their current prescribed tour.  Evidence of record shows the applicant only completed 10 months of an initial 12 month assignment to Skopje, Macedonia before his retirement date.  The advisory opinion points out that the fact that the applicant was voluntarily recalled to active duty (retiree recall) and assigned to Skopje, Macedonia on two occasions without a break in service does not qualify as a COT/IPCOT PCS assignment.  Therefore, there is no basis for granting the applicant's request.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ____X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   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)                                         AR20090001068



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ABCMR Record of Proceedings (cont)                                         AR20090001068



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