IN THE CASE OF:	  

		BOARD DATE: 	        23 June 2009

		DOCKET NUMBER:  AR20090002676 


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, Contingency Operation Temporary Tour of Active Duty (COTTAD) Orders,
DD Form 214 (Certificate of Release or Discharge from Active Duty), and orders to active duty in Active Guard Reserve (AGR) status.  The applicant also requests 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, an extract from his 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 Illinois Army National Guard (ILARNG) who is currently serving on active duty in support of Operation Enduring Freedom.



2.  Department of Military Affairs, State of Illinois, Springfield, Illinois, Orders 
003-691, dated 3 January 2002, ordered the applicant to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Enduring Freedom effective 4 January 2002 for a period not to exceed 365 days.  Orders 211-197, dated 30 July 2002, from the same orders issuing authority, amended Orders 003-691 to show the ending date of the applicant's mobilization as 16 August 2002.

3.  The applicant's DD Form 214 for the period ending 16 August 2002, shows he was involuntarily 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 4 January 2002 through 16 August 2002, a total of 225 days.  This
DD Form 214 also shows the applicant served in Germany for the period 23 January 2002 through 18 July 2002, for a total of 177 days overseas.

4.  Department of Military Affairs, State of Illinois, Camp Lincoln, Springfield, Orders 053-007, dated 22 February 2003, ordered the applicant to full-time National Guard duty (FTNGD) under the voluntary provisions of Title 32, U.S. Code, section 502(f) effective 18 February 2003 for a period of three years with a projected ending date of 17 February 2006.

5.  The applicant's DD Form 214 for the period ending 4 January 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, but performed his period of active duty in AGR status under the provisions of Title 32, U.S. Code, section 502(f) from 18 February 2003 through 4 January 2005, a total of 687 days.

6.  The applicant provides two pages extracted from his COTTAD application:  the reverse side of a DA Form 1058-R (Application for Active Duty for Training, Active Duty for Special Work, Temporary Tour of Active Duty, and Annual Training for Soldiers of the Army National Guard and U.S. Army Reserve), dated 14 December 2004; and a volunteer statement, dated 11 December 2004.
These documents show that the applicant volunteered for a COTTAD extension of his period of mobilization commencing with the completion of 730 days of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302 on or about 26 May 2006 for a period of 40 days.

7.  Department of Military Affairs, State of Illinois, Springfield, Orders 003-017, dated 3 January 2005, involuntarily ordered the applicant to active duty in support of Operation Iraqi Freedom effective 5 January 2005 for a period not to exceed 505 days.  Item (n) of the additional instructions portion of these orders stated that the "SM [Service Member] will convert to COTTAD on 26 May 2006."
8.  U.S. Army Human Resources Command, Alexandria (USAHRC-Alexandria), Virginia, Orders A-04-510611, dated 25 April 2005, ordered the applicant to active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d), effective 25 May 2006 for a period of 41 days with a projected ending date of 4 July 2006.  The purpose of these orders was to allow the applicant to perform COTTAD in support of Operation Iraqi Freedom.

9.  Headquarters, 3rd Infantry Division, Fort Stewart, Georgia, Orders 121-0057, dated 1 May 2006, released the applicant from active duty effective 10 May 2006.

10.  The applicant's DD Form 214 for the period ending 10 May 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 5 January 2005 through 10 May 2006, a total of 491 days.  This DD Form 214 also shows the applicant served in Kuwait and Iraq for the period 15 May 2005 through 27 April 2006, for a total of 348 days boots on ground (BOG).

11.  Department of Military Affairs, State of Illinois, Camp Lincoln, Springfield, Orders 130-105, dated 10 May 2006, ordered the applicant to FTNGD under the voluntary provisions of Title 32, U.S. Code, section 502(f) effective 11 May 2006 for a period of six years and three months with a projected ending date of
10 August 2012.  The purpose of these orders was for the applicant to serve as a Readiness NCO [Noncommissioned Officer].

12.  Department of Military Affairs, State of Illinois, Camp Lincoln, Springfield, Orders 247-141, dated 3 September 2008, released the applicant from AGR status effective 14 August 2008 in order for him to be mobilized under the provisions of Title 10 USC in support of Operation Enduring Freedom.

13.  The applicant's DD Form 214 for the period ending 14 August 2008, 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, but performed his period of active duty in AGR status under the provisions of Title 32, U.S. Code, section 502(f) from 11 May 2006 through 14 August 2008, a total of 827 days.

14.  The applicant's DD Forms 214 show that he was involuntarily mobilized for a cumulative total of 716 days under the provisions of Title 10, U.S. Code, section 12302 during the periods 4 January 2002 through 16 August 2002, a total of 225 days; and 5 January 2005 through 10 May 2006, a total of 491 days.  His DD Forms 214 also show he was voluntarily mobilized for a cumulative total of 1,514 days under the provisions of Title 32 U.S. Code, section 502(f) during the periods 18 February 2003 through 4 January 2005, a total of 687 days; and 11 May 2006 through 14 August 2008, a total of 827 days.

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

16.  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 (RC) Soldiers would have to be involuntarily mobilized for a cumulative total of 730 days in Title 10, U.S. Code, section 12302 status prior to 19 January 2007 in order to be eligible for AIP.  It was further opined, in effect, that although the applicant was involuntarily mobilized for a cumulative total of 730 days, his DD Forms 214 show he did not complete the required number of days of involuntary mobilization in order to be eligible to qualify for receipt of AIP.  On 23 March 2009, in compliance with Title 10, U.S. Code, section 1556, the applicant was provided a copy of the advisory opinion for information and to afford him the opportunity to submit comments or a rebuttal prior to 23 April 2009.  As of 15 June 2009, the applicant had not provided a response to the advisory opinion.

17.  Department of the Army Personnel Policy Guidance, in effect at the time of the applicant's mobilization, paragraph 10-3, provided that RC 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 RC 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).

18.  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 Deputy Chief of Staff (DCS) G-1 approval prior to USAHRC-Alexandria publishing orders.

19.  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.

20.  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 COTTAD.  The terms are synonymous and in both cases, the tour of duty is considered to be on a voluntary basis.

21.  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 his DD Forms 214, the applicant did not complete the required minimum of 730 days of involuntary mobilization in order to be eligible for receipt of AIP.

3.  Evidence shows that the applicant was mobilized a total of 2,230 days in support of the Global War on Terrorism during the period of 4 January 2002 through 10 May 2006.  His DD Forms 214 show that he was involuntarily mobilized for a cumulative total of 716 days under the provisions of Title 10, U.S. Code, section 12302; and voluntarily mobilized for a cumulative total of 1,514 days under the provisions of Title 32 U.S. Code, section 502(f).
4.  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.  Accordingly, USAHRC-Alexandria, Orders A-04-510611, dated 25 April 2005, ordered the applicant to active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d), effective 25 May 2006 for a period of 41 days with a projected ending date of 4 July 2006 for the purpose of performing COTTAD in support of Operation Iraqi Freedom.

5.  In direct contravention with both his Mobilization Orders 003-017, dated 3 January 2005 and COTTAD Orders A-04-510611, dated 25 April 2005, and 
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 32 U.S. Code, section 502(f)) when calculating his cumulative involuntary time (under the provisions of Title 10, U.S. Code, section 12302).  This miscalculation resulted in the erroneous issuance of Headquarters, 3rd Infantry Division, Fort Stewart, Orders 121-0057, dated 1 May 2006, which released the applicant from active duty effective 10 May 2006, 14 days prior to his previously coordinated completion of 730 days of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302.  This, in turn, resulted in the erroneous issuance of Department of Military Affairs, State of Illinois, Camp Lincoln, Springfield, Orders 130-105, dated 10 May 2006, which ordered the applicant to FTNGD under the voluntary provisions of Title 32, U.S. Code, section 502(f) effective 11 May 2006, 14 days prior to his previously coordinated completion of 730 days of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302.

6.  Although the applicant has continuously served on active duty since 18 February 2003, these two erroneous orders precluded him from receiving his AIP entitlements by prematurely terminating his involuntary mobilization and preempting his valid COTTAD orders.

7.  As a result, Headquarters, 3rd Infantry Division, Fort Stewart, Orders
121-0057, dated 1 May 2006, which released the applicant from active duty effective 10 May 2006 should be amended by changing the effective date of his release from 10 May 2006 to 24 May 2006.  This action will honor the applicant's extension agreement and enable him to complete the authorized maximum of 730 cumulative days of involuntary mobilization and make him eligible to receive AIP.

8.  Accordingly, USAHRC-Alexandria, Orders A-04-510611, dated 25 April 2005, which ordered the applicant to active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d) for the purpose of performing COTTAD in support of Operation Iraqi Freedom, will account for his time during the 41 day period of 25 May 2006 through 4 July 2006.  

9.  As a result, Department of Military Affairs, State of Illinois, Camp Lincoln, Springfield, Orders 130-105, dated 10 May 2006, which ordered the applicant to FTNGD under the voluntary provisions of Title 32, U.S. Code, section 502(f) effective 11 May 2006 should be amended by changing the effective date from 11 May 2006 to 5 July 2006.

10.  Based on the foregoing, it would also be appropriate at this time to amend the applicant's records to show that he was:

	a.  involuntarily mobilized under the provisions of Title 10, U.S. Code, section 12302 during the periods of 4 January 2002 through 16 August 2002 and 5 January 2005 through 24 May 2006; 

	b.  voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period of 25 May 2006 through 4 July 2006; and 

	c.  voluntarily mobilized under the provisions of Title 32, U.S. Code, section 502(f) during the periods of 18 February 2003 through 4 January 2005 and 5 July 2006 through 14 August 2008.

11.  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 12302 until the completion of his period of COTTAD status.  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 of 26 March 2006 through 4 July 2006, a total of 101 days.

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.  amending Headquarters, 3rd Infantry Division, Fort Stewart, Orders
121-0057, dated 1 May 2006, to change the effective date of his release from active duty from 10 May 2006 to 24 May 2006;

	b.  showing the applicant was involuntarily mobilized under the provisions of Title 10, U.S. Code, section 12302 during the periods of 4 January 2002 through 16 August 2002 and 5 January 2005 through 24 May 2006; 

	c.  showing the applicant was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period of 25 May 2006 through 4 July 2006;

	d.  amending Department of Military Affairs, State of Illinois, Camp Lincoln, Springfield, Orders 130-105, dated 10 May 2006, which ordered the applicant to FTNGD under the voluntary provisions of Title 32, U.S. Code, section 502(f) to change the effective date from 11 May 2006 to 5 July 2006;

	e.  showing the applicant was voluntarily mobilized under the provisions of Title 32, U.S. Code, section 502(f) during the periods of 18 February 2003 through 4 January 2005 and 5 July 2006 through 14 August 2008; and

	f.  paying the applicant all prorated pay entitlements associated with Assignment Incentive Pay during the period of 26 March 2006 through 4 July 2006, a total of 101 days.



      ___________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)                                         AR20090002676



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090002676



9


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1