BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090001562 


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 that the separation date on his DD Form 214
(Certificate of Release or Discharge from Active Duty) for the period ending 31 July 2007 be amended to show that he was discharged on 6 August 2007.

2.  The applicant states, in effect, that his records should be amended to show that he completed two consecutive years of mobilization on active duty in order to enable him to receive educational benefits.  The applicant contends that denial of his request would conflict with the precedent established by the 1st Brigade Combat Team (BCT) of the 34th Infantry Division, wherein, once media and local politicians were engaged, Soldiers' orders were amended to enable them to receive educational benefits as if they served two consecutive years on active duty.  The applicant also contends that he was never able to exhaust his accrued leave and had he been afforded the opportunity to use his leave, he would have clearly met the two-year mark.

3.  The applicant provides copies of three memoranda, his DD Form 214, a DFAS Form 702 (Defense Finance and Accounting Service Military Leave and Earnings Statement), two news articles, two orders to active duty, an attachment order, 14 pages of electronic mail (e-mail) correspondence, and information about the Reserve Educational Assistance Program (REAP) extracted from the Department of Veterans Affairs GI Bill internet website as documentary evidence in support of this application.



CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that is an active member of the North Carolina Army National Guard (ARNG).  He currently holds the rank/grade of captain (CPT)/O-3 in the Corps of Engineers.

2.  The applicant's record contains (and he also provides) State of North Carolina, Office of the Adjutant General, Raleigh, NC, Orders 194-222, dated    13 July 2005, that ordered the applicant to active duty as a member of his Reserve Component (RC) unit under the involuntary provisions of Title 10, U.S. Code, section 12302, in support of Operation Iraqi Freedom, effective 6 August 2005 for a period not to exceed 545 days.  When the applicant's unit was scheduled to demobilize, he submitted an application for voluntary participation in the Operation Warrior Training Program.

3.  The applicant's record contains (and he also provides) Headquarters, XVIII Airborne Corps, Fort Bragg, NC, Orders 290-371, dated 17 October 2006, which attached the applicant to the 2125th Garrison Support Unit, Detachment 10, located at Fort Bragg with duty at the 4th Training Support Battalion (TSB), 78th Division (Training Support) located in Edison, New Jersey, in a legal/
administrative holdover status pending receipt of approval of Contingency Operation Temporary Tour of Active Duty (COTTAD) in the Operation Warrior Trainer Program, effective 18 October 2006 for a period not to exceed 545 days from his original mobilization date.  Item F in the Additional Instructions portion of these orders stated "Use of leave during this deployment is recommended for all Soldiers.  For RC Soldiers, a copy of the leave record will be submitted upon completion of this operation with the final settlement voucher. If unable to take leave accrued during this period, a payment of unused leave is authorized with no impact to RC career leave sell back of 60 days."

4.  The applicant's record contains (and he also provides) U.S. Army Human Resources Command (USAHRC), Alexandria, VA, Orders A-01-702597, dated 31 January 2007, that ordered the applicant to active duty under the voluntary provisions of Title 10, U.S. Code, sections 12301(d) and 12314 at Headquarters, U.S. Army Element of the 72nd Field Artillery Brigade located at Fort Meade, MD for the purpose of providing COTTAD in support of Operation Enduring Freedom (OEF) on 2 February 2007.  The period of active duty specified on these orders was 180 days including accumulated leave and the end date was 31 July 2007.

5.  USAHRC, Alexandria, Orders A-01-70259701, dated 4 April 2007, amended Orders A-01-702597, dated 31 January 2007, to show the period of active duty as reads 180 days including accumulated leave to read 5 months and 30 days including accumulated leave.  These orders also amended the purpose of the orders as reads for the purpose of providing COTTAD in support of OEF to read for the purpose of providing Contingency Operation for Active Duty Support (COADOS) in support of OEF.

6.  The applicant provides copies of e-mail correspondence exchanged during the period of 22 June 2007 to 8 July 2007 that shows:

	a.  on 22 June 2007, the applicant requested assistance from the Brigade Training Officer [Major H___r] with obtaining an extension of his active duty tour for one week or 10 days, whichever was easiest to process.  The catalyst for this request was to remain on active duty until at least 6 August 2007, in order to reach two continuous years of active duty service so he would be eligible for increased financial benefits under the Montgomery GI Bill.

	b.  on 28 June 2007, the Training Officer informed the Brigade Commander [Colonel M____s] that the applicant's request to extend for the purpose of reaching the two-year mobilization mark in order to gain more benefits for his attendance at law school was outside the realm of reasons to extend mobilization orders and, as such, would require approval by the Post Commander [Colonel M____l].

	c.  the brigade chain of command was informed by the Post Commander and his staff that the applicant's tour could only be extended for either medical or Uniform Code of Military Justice (UCMJ) reasons and the applicant was not the subject of either.  As a result, the applicant informed his chain of command that he desired to elevate the matter to a higher echelon.

	d.  on 6 July 2007, [Colonel B__d] the Deputy Post Commander for Readiness of the 99th Regional Readiness Command, informed the applicant's brigade commander that the applicant's request would probably be disapproved due to the fact that continental U.S. (CONUS) based Soldiers have ample time to utilize their accrued leave, unlike their outside CONUS (OCONUS) theater counterparts.  The First Army G-1 [Mr. S_____z] advised the applicant's chain of command to request an extension based on the applicant being denied leave due to mission requirements.

7.  The applicant provides Headquarters, 72nd Field Artillery Brigade, 1st Army Division East, U.S. Army Reserve (USAR) Training Center, Fort Meade, memorandum, dated 9 July 2007, Subject:  Request for Extension of COADOS orders.  This memorandum shows the Brigade Commander requested that USAHRC extend the applicant's mobilization orders for a period of 10 days to allow him the opportunity to take his leave earned while on active duty during his CONUS and OCONUS mobilization.  The commander stated, in effect, that work demands during the last several weeks had caused the applicant to miss the opportunity to utilize his transitional leave and to demobilize.  The Commander concluded that the applicant had accrued 34 days of leave:  15 days during his COADOS mobilization and 19 days during his previous mobilization while in Iraq.

8.  USAHRC memorandum, dated 10 July 2007, Subject:  Request for Extension on Active Duty (applicant's name, Social Security Account Number, and rank) shows the request to extend the applicant’s period of active duty for the purpose of expending his accrued leave was disapproved by a representative of the Chief of the Mobilization Support Branch.  It was noted that the practice of extending a Soldier's tour on active duty was intended for Soldiers mobilized OCONUS supporting the war fight.  Soldiers mobilized CONUS are not eligible and will be required to sell their leave unless there is strong justification as to why the Soldier did not take leave.  The representative of the Chief of the Mobilization Support Branch also advised the applicant's commander that in accordance with the Army G-1 Personnel Policy Guidance, the major command could submit a request, with appropriate justification, to Army G-3 for validation.

9.  The applicant provides copies of e-mail correspondence exchanged on 13 July 2007 that shows he contacted [Lieutenant General H_____e] the Commanding General of First Army, directly, to request his assistance with having his tour of active duty extended in order to become eligible for additional GI Bill benefits.  On the same date, the Commanding General asked his staff to look into the matter and he was subsequently informed that the applicant's request had been denied by both USAHRC and the Department of the Army.  

10.  The applicant provides a Headquarters, 2nd Training Support Battalion, 315th Field Artillery, New Cumberland, Pennsylvania, memorandum, dated
24 July 2007, which shows his battalion commander requested that USAHRC grant the applicant an exception to policy and extend his mobilization orders to allow him the opportunity to take his leave earned while on active duty during his CONUS-based mobilization.  The commander stated that the applicant's dedication and mission focus could not afford him the time to take leave during the mobilization period.

11.  The applicant provides copies of e-mail correspondence exchanged on 25 July 2007 that shows he informed the Commanding General of First Army, directly, that his extension had been disapproved.  He also informed the Commanding General that the option for a short-term extension which had been mentioned by the First Army G-1 would have jeopardized his preparation to start law school on 13 August 2007 because he needed at least a week to 10 days to transition to Florida.  The applicant concluded that he was quite discouraged after serving a year in Iraq and volunteering to support Fort Dix, NJ as an Operation Warrior Trainer, that something was not able to be done.  The Commanding General apologized and wished the applicant good luck.

12.  The applicant provides a copy of an e-mail message sent to him by [General C__y] the Vice Chief of Staff of the Army on 27 July 2007.  The Vice Chief of Staff of the Army thanked the applicant for his service and informed him that he fully understood his position.  The Vice Chief of Staff of the Army also assured the applicant that his staff had reviewed his request and determined that orders cannot be amended for the sole purpose of obtaining a benefit; therefore, extending his orders for six days for the purpose of receiving additional veteran benefits is not authorized.

13.  Headquarters, U.S. Army Fort Dix, Orders 211-0008, 30 July 2007, released the applicant from active duty, effective 31 July 2007.

14.  The applicant's DD Form 214 for the period ending 31 July 2007 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 he served during the period 6 August 2005 through 1 February 2007, a total of 545 days.  During this period of time, the applicant served in Iraq for 1 year and 6 days (371 days).  This DD Form 214 also shows the applicant served under the voluntary provisions of Title 10, U.S. Code, section 12301(d) during the period 2 February 2007 through 31 July 2007, a total of 180 days (six months).  The applicant served on active duty continuously during the period of 6 August 2005 through
31 July 2007, for a total of 725 days.

15.  The applicant provides a DFAS Form 702 which shows he was paid for 12.5 days of leave accrued during his active duty tour.

16.  The applicant's record contains (and he also provides) State of North Carolina, Office of the Adjutant General, Orders 269-076, dated 26 September 2007, which amended Orders 194-222, dated 13 July 2005, from the same orders issuing authority to show the period of active duty as 6 August 2005 through 31 July 2007.

17.  The applicant provides two news articles pertaining to the Minnesota Army National Guard's 1st BCT of the 34th Infantry Division.  One is a transcript of a television news article extracted from the National Broadcasting Company (NBC) Minneapolis - St. Paul, MN affiliate KARE Channel 11's internet website that was
published on 4 October 2007.  The second article is an extract from the Minneapolis - St. Paul, MN Star Tribune newspaper's internet website that was published on 1 November 2007.
	a.  These articles, in effect, focus on the fact that although the 1st BCT of the 34th Infantry Division had been involuntarily mobilized and served
22 consecutive months in Iraq (the longest of any U.S. unit in Iraq), nearly half of the Soldiers in the 2,600 member unit were not entitled to the same GI Bill benefits as the remainder of the unit because they were demobilized before serving 730 days of active duty mobilization required by the bill.

	b.  The Soldiers were mobilized in September 2005 for training and deployed to Iraq in March 2006.  They were scheduled to return home and demobilize in January but their tours were involuntarily extended another 125 days as part of President Bush's troop surge.

	c.  Members of the Minnesota congressional delegation worked with the Minnesota Army National Guard (MNARNG) and the Department of the Army to correct the apparent inequity that was caused by the fact that the period of involuntary mobilization on the orders for 1,162 of the affected troops (who had served just as long as their colleagues) had been written from one to 12 days short of the required 730 days.

	d.  As a matter of equity, the Army Secretary called for a fast review and tasked the Army Board for Correction of Military Records (ABCMR) to expedite its review process by considering the issue as a group case rather than 1,162 individual cases so the Soldiers could get their benefits in a timely manner.

18.  The applicant provides information about the REAP extracted from the Department of Veterans Affairs GI Bill internet website which shows the basic monthly benefit rates of Educational Assistance Allowance that were effective 1 August 2008.  In pertinent part, the extract shows that a Soldier who had consecutive service of one year or greater, but less than two years was entitled to receive $792.60 per month as a full time student; and one who had consecutive service of two or more years was entitled to $1,056.80 per month.

19.  On 27 July 2009, an advisory opinion was obtained from the Chief, Personnel Division of the National Guard Bureau.  The advisory official recommended disapproval of the applicant's request.

20.  The advisory official opined, in effect, that the applicant served in a CONUS status for a period of time that was long enough for him to exhaust the leave he 
had accrued during both periods of mobilization.  The advisory official further opined that the applicant's DD Form 214 had been prepared in accordance with Personnel Policy Guidance.  A copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit any comments or a rebuttal.
21.  On 17 September 2009, the applicant responded to the advisory opinion.  In his response, the applicant took exception to the portion of the advisory opinion that referred to his active duty time as CONUS rather than OCONUS.  The applicant stated that the assertion was wrong and offensive as it ignored the time that he served in combat in Iraq.  The applicant concluded that he then volunteered to train and mobilize Soldiers, Seamen, and Airmen preparing for combat at Fort Dix in the Operation Warrior Trainer Program.

22.  On 13 October 2007, a member of the ABCMR staff contacted the applicant to see if he could provide a copy of his COTTAD volunteer packet and to inquire about the nature of the short-term extension that he claims had been offered to him by the 1st Army G-1.  The applicant stated that his copy of his COTTAD request did not specify the amount of time for which he was volunteering.  The applicant also provided an email response on 14 October 2009, in which he stated:

	"The 'option' referenced below was unreasonable as there was no guarantee I would be released prior to law school starting,  Further, I never saw this 'option'; the 'option' was something to the effect of signing up for an additional 30-days and then hope I would be released.  Under this option, from what I remember, the soonest I would have been released would have been 15 Aug[ust] and the latest would have been 30 Aug[ust].  Clearly, this would have jeopardized the opportunity to begin school in Fall 2007."

23.  The term, Contingency Operations 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the separation date on his DD Form 214 for the period ending 31 July 2007 should be amended to show that he was discharged on 6 August 2007 and to show that he completed two consecutive years of mobilization on active duty in order to enable him to receive educational benefits. He further contends that denial of his request would conflict with the precedent established by the 1st BCT of the 34th Infantry Division.  Each of these contentions were carefully considered and determined to lack merit.

2.  Evidence shows that the applicant was involuntarily mobilized under the provisions of Title 10, U.S. Code, section 12302 during the period 6 August 2005 through 1 February 2007, a total of 545 days.  During this period of time, the applicant served in Iraq for 371 days.

3.  Evidence also shows that in lieu of demobilizing with his unit, the applicant volunteered for a COTTAD in order to participate in the CONUS-based Operation Warrior Trainer Program.  In the interim, the applicant was issued orders that attached him to the 2125th Garrison Support Unit, Detachment 10, located at Fort Bragg with duty at the 4th TSB, 78th Division (Training Support) located in Edison, NJ, in a Legal/Administrative Holdover status pending receipt of approval of his COTTAD request, effective 18 October 2006 for a period not to exceed 545 days from his original mobilization date.  Item F in the Additional Instructions portion of these orders stated "Use of leave during this deployment is recommended for all Soldiers.  For RC Soldiers, a copy of the leave record will be submitted upon completion of this operation with the final settlement voucher.  If unable to take leave accrued during this period, a payment of unused leave is authorized with no impact to RC career leave sell back of 60 days."

4.  The applicant's voluntary COTTAD request was approved and on 31 January 2007, he was ordered to active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d) and 12314, effective 2 February 2007.  The period of active duty specified on these orders was 180 days including accumulated leave and the end date was 31 July 2007.

5.  The applicant was in a Legal/Administrative Holdover status pending a determination on his COTTAD request from 18 October 2006 through 1 February 2007, a total of 108 days.  This was an opportune time for him to exhaust any leave that he had accrued thus far.  

6.  The applicant's voluntary COTTAD orders to active duty clearly stated that his period of active duty "including accumulated leave" would end on 31 July 2007.  Therefore, it was both his and his gaining chain of command's responsibility to ensure he exhausted his accrued leave in a timely manner.

7.  Evidence shows the applicant's request was considered and subsequently denied at every level of his chain of command, from local to the Vice Chief of 
Staff of the Army, based upon the fact that there are no provisions for extending a Soldier's CONUS based period of active duty for the purpose of either taking accrued leave or so they may become eligible for increased Veterans Affairs benefits.

8.  In his 24 July 2007 memorandum, his battalion commander stated “the applicant's dedication and mission focus could not afford him the time to take leave during the mobilization period.”  That is a clear indicator that the applicant did not even try to request leave and, therefore, there is no evidence to show the applicant was denied leave.  Evidence shows the applicant was paid for 12.5 days of leave accrued during his active duty tour; therefore, he was duly compensated.

9.  The applicant's attempt to draw a parallel between his case and the case of the 1st BCT of the 34th Infantry Division has no basis.  The Soldiers assigned to the 1st BCT were involuntarily mobilized and subsequently involuntarily extended on active duty while deployed in an OCONUS combat zone.  Additionally, there was a matter of equity in that case due to the fact that approximately half of the unit's Soldiers had been issued orders which disadvantaged them when compared to their peers, with whom they had served.

10.  Based on the foregoing, it would be inappropriate in this case to amend the applicant's records to show that he served continuously on active duty for a period of two years in order to make him eligible for increased benefits.

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)                                         AR20090001562



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ABCMR Record of Proceedings (cont)                                         AR20090001562



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