IN THE CASE OF:	  

		BOARD DATE:	  	   30 April 2009

		DOCKET NUMBER:  AR20090002356 


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) 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.

3.  The applicant provides copies of two DD Forms 214 (Certificate of Release or Discharge from Active Duty), a COTTAD application, and orders to active duty as documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he is a member of the Texas Army National Guard (TXARNG) assigned to Battery A, 4th Battalion of the 133rd Field Artillery Regiment as a Vehicle Driver.  He currently holds the rank of corporal (CPL)/pay grade E-4.

2.  The applicant's DD Form 214 for the period ending 5 January 2003, shows he was 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 from 6 January 2002 through 5 January 2003, a total of 365 days.  The applicant's National Guard Bureau (NGB) Form 23B (Army National Guard Retirement Points History Statement), dated 20 May 2004, further confirms he continuously served on active duty during this period of time.

3.  State of Texas, Adjutant General's Department, Austin, Texas, Orders
016-333, dated 16 January 2003, ordered the applicant to active duty under the provisions of Title 10, U.S. Code, section 12302 in support of Operation Enduring Freedom effective 16 January 2003 for a period not to exceed 365 days.

4.  State of Texas, Adjutant General's Department, Austin, Orders 212-092, dated 31 July 2003, amended Orders 016-333 by changing his period of active duty from 16 January 2003 through 20 August 2003.  The applicant's NGB Form 23B, dated 20 May 2004, confirms he was mobilized and continuously served on active duty during the period from 16 January 2003 through 20 August 2003, for a total of 217 days.

5.  State of Texas, Land Component Command, Austin, Orders 062-313, dated
3 March 2005, ordered the applicant to active duty under the provisions of Title 10, U.S. Code, section 12302 in support of Operation Enduring Freedom effective 7 March 2005 for a period not to exceed 545 days.

6.  State of Texas, Land Component Command, Austin, Orders 074-117, dated 15 March 2005, amended Orders 062-313 by changing his period of active duty to 7 March 2005 through 1 August 2005.

7.  U.S. Army human Resources Command (USAHRC), Alexandria, Virginia, Orders A-04-509050, dated 1 April 2005, ordered the applicant to active duty under the provisions of Title 10, U.S. Code, section 12301(d) in COTTAD support of Operation Enduring Freedom effective 2 August 2005 for a period of 397 days.

8.  The applicant's DD Form 214 for the period ending 10 June 2006, shows he was ordered to active duty under the provisions of Title 10, U.S. Code, section 12302 in support of Operation Enduring Freedom and served during the period from 7 March 2005 through 1 August 2005, for a total of 148 days. This DD Form 214 also shows the applicant served on active duty under the provisions of Title 10, U.S. Code, section 12301(d) for the period from 2 August 2005 through
10 June 2006, for a total of 313 days in COTTAD status.  This DD Form 214 also shows the applicant served in Afghanistan for the period from 7 May 2005 through 7 May 2006, for a total of 366 days boots on ground (BOG).


9.  The applicant provides a DA Form 4187 (Personnel Action), which indicates that he volunteered for a COTTAD and that he acknowledged and accepted reassignments during the COTTAD period commencing with the completion of 730 days of mobilization under the provisions of Title 10, U.S. Code, section 12302 on or about on or about 28 July 2006 for a period of 545 days.  Although this form was neither signed by the applicant nor dated, it was authenticated by a colonel on behalf of The Adjutant General of the TXARNG.

10.  Texas Military Forces, Army National Guard, Austin, Orders 209-001, dated 28 July 2006, ordered the applicant to active duty under the provisions of Presidential Executive Order 13223, dated 14 September 2001 in support of Operation Iraqi Freedom effective 28 July 2006 for a period not to exceed 545 days.

11.  The applicant's DD Form 214 for the period ending 13 November 2007, shows he was 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 28 July 2006 through 13 November 2007, for a total of 474 days.  This DD Form 214 also shows the applicant served in Iraq for the period from 24 October 2006 through 5 October 2007, for a total of 347 days BOG.

12.  The applicant's record shows that he was mobilized during the period from 6 January 2002 through 5 January 2003, for a total of 365 days.  The applicant was mobilized again during the period from 16 January 2003 through 20 August 2003, for a total of 217 days.  The applicant was mobilized once again for the period from 7 March 2005 through 1 August 2005, for a total of 148 days; bringing him to a cumulative total of 730 days of involuntary mobilization.  The applicant completed 730 cumulative days of mobilization under the provisions of Title 10, U.S. Code, section 12302 on 1 August  2005.  Then he was immediately mobilized under the provisions of Title 10, U.S. Code, section 12301(d) for the period from 2 August 2005 through 10 June 2006, for a total of 313 days in COTTAD status.  Finally, the applicant was involuntarily mobilized once again for the period from 28 July 2006 through 13 November 2007, for a total of 474 days.

13.  An advisory opinion was obtained from the Chief, Personnel Policy and Readiness Division of the NGB.  The advisory official recommended that the application be approved.

14.  The advisory official, in effect, opined that based on the guidance from the Secretary of Defense and the President of the United States pertaining to involuntary mobilization authorization, Reserve Component Soldiers can only be involuntarily mobilized for 730 cumulative days in Title 10, U.S. Code, section 
12302 status.  It was further opined that once the applicant completed a cumulative total of 730 days in Title 10, U.S. Code, section 12302 status, the applicant's Title 10, U.S. Code, section 12301(d) COTTAD order should have commenced.  The advisory opinion was rendered based solely upon the documents that the applicant provided; therefore, the advisory official only took two of the applicant's five mobilizations into consideration.  On 5 March 2009, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit any comments.  As of 22 April 2009, the applicant had not provided a response.

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.  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).

16.  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 1,095 days.  Requests beyond authorized durations required Deputy Chief of Staff (DCS) G-1 approval prior to USAHRC-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 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 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.

18.  The term, Contingency Operation for Active Duty Operational Support
(CO-ADOS), 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.

19.  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 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 NGB, 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. However, since the advisory opinion only reflected two of the applicant's five mobilizations, the dates cited in the advisory opinion are incorrect and do not give the applicant full credit for the time he served.

3.  Evidence shows that the applicant was involuntarily mobilized for 730 days during the periods from 6 January 2002 through 5 January 2003, from
16 January 2003 through 20 August 2003, and from 7 March 2005 through
1 August 2005.  The applicant completed 730 cumulative days of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302 on 1 August 2005.  Accordingly, he was immediately mobilized under the voluntary provisions of Title 10, U.S. Code, section 12301(d) for the remainder of his mobilization during the period from 2 August 2005 through 10 June 2006, a total of 313 days in COTTAD status.

4.  Evidence shows that although the applicant volunteered for a COTTAD under the provisions of Title 10, U.S. Code, section 12301(d) commencing on or about  28 July 2006, he was involuntarily mobilized under the provisions of Title 10, U.S. Code, section 12302 for the period from 28 July 2006 through 13 November 2007, for a total of 474 days.  This fourth involuntary mobilization brought the applicant cumulative total of 1,204 days of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302; which exceeded the maximum allowed by law.  As a result, his voluntary COTTAD orders should have commenced on 28 July 2006 and continued through 13 November 2007, for a total of 474 days in COTTAD status.

5.  Based on the foregoing, it would be appropriate in this case to amend the applicant's records to show that he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period from 28 July 2006 through 13 November 2007.

6.  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 of entitlement.

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.  he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period from 28 July 2006 through 13 November 2007; and

	b.  he is entitled to 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.

ABCMR Record of Proceedings (cont)                                         AR20090002356



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ABCMR Record of Proceedings (cont)                                         AR20090002356



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