IN THE CASE OF:	  

		BOARD DATE:	  22 October 2009

		DOCKET NUMBER:  AR20090004732 


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 unit's deployment orders and payment of retroactive entitlements associated with Involuntary Assignment Incentive Pay (AIP).  The applicant also requests award of the Combat Action Badge and payment for one-half day of accrued leave.

2.  The applicant states, in effect, that his records should be amended to show the involuntary extension of his unit's deployment in Iraq required him to serve beyond the 365 day boots on ground (BOG) requirement in order to be eligible for receipt of Involuntary AIP.  The applicant further states that members of his former unit were approved for receipt of $1,000 in AIP entitlements and most of them have received payment.  The applicant was discharged from the South Dakota Army National Guard (SDARNG) following redeployment and was not included when his former unit processed its batch request for AIP.  The applicant continues that his numerous attempts to be paid his AIP entitlements were unsuccessful.  The applicant concludes that he did not receive the Combat Action Badge that was awarded to his unit for actions occurring in Iraq.

3.  The applicant provides copies of mobilization orders, deployment orders, and a DD Form 214 (Certificate of Release or Discharge from Active Duty) as documentary evidence in support of his request for Involuntary AIP.  The applicant also provides a DA Form 4187 (Personnel Action), a Spot Report, three witness statements, a self-authored statement, and a Memorandum for Record in support of his request for award of the Combat Action Badge.


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he was a member of the SDARNG.  The record also shows that the applicant was assigned to Battery B, 2d Battalion, 147th Field Artillery Regiment, during the period of mobilization which is the subject of this application.

3.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-5, Section II, the regulation under which the ABCMR operates, states that the Board will not consider any application if it determines that the applicant has not exhausted all administrative remedies available to them.  There is no evidence in the available record that indicates the applicant submitted a request for award of the Combat Action Badge to the National Guard Bureau prior to requesting relief from the ABCMR.  There is also no evidence in the available record that indicates the applicant submitted a request for payment for one-half day of accrued leave to the Defense Finance and Accounting Service (DFAS) prior to requesting relief from the ABCMR.  The proper procedures for requesting the Combat Action Badge and payment for one-half day of accrued leave were provided to the applicant in the advisory opinion furnished to the applicant on 14 August 2009.  In light of this fact, the portions of the applicant's request pertaining to award of the Combat Action Badge and payment for one-half day of accrued leave will not be addressed any further in these Proceedings. However, should the applicant's case not be resolved to his satisfaction and he still feels that an error or injustice exists; he may resubmit an application to this Board, including evidence of the denial of his requests from the National Guard Bureau and/or DFAS.

4.  Office of the Adjutant General, SDARNG, Rapid City, Orders 351-001, dated 17 December 2003, ordered the applicant's unit and its members to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 on 18 December 2003 for a period not to exceed 535 days.
5.  State of South Dakota, Department of Military and Veterans Affairs, Office of the Adjutant General, Rapid City, South Dakota, Orders 351-164, dated 17 December 2003, ordered the applicant to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Iraqi Freedom on 18 December 2003 for a period not to exceed 535 days.

6.  Headquarters, United States Army Field Artillery Center, Fort Sill, OK, Orders 020-301, dated 20 January 2004, deployed the applicant's unit and its members to the Central Command's (CENTCOM) area of responsibility (AOR) in Iraq in support of Operation Iraqi Freedom on 25 January 2004 for a period of 356 days with possible extension not to exceed 540 days.

7.  The applicant's DD Form 214 for the period ending 7 March 2005 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 he served for the period from 18 December 2003 to 7 March 2005.  The DD Form 214 also shows the applicant served in Kuwait and Iraq for the period from 29 January 2004 to 6 February 2005, a total of 375 days [2004 was a leap year].

8.  State of South Dakota, Department of Military and Veterans Affairs, Office of the Adjutant General, Orders 221-524, dated 9 August 2005, discharged the applicant from the ARNG and assigned him to the U.S. Army Reserve (USAR) Control Group (Annual Training), effective 5 June 2005.

9.  The applicant's NGB Form 22 (Report of Separation and Record of Service) for the period ending 5 June 2005 shows he was discharged from the SDARNG effective 5 June 2005 with an honorable characterization of service.  Item 18 (Remarks) of this form shows the applicant served in Kuwait and Iraq for the period from 29 January 2004 to 6 February 2005.

10.  An advisory opinion was obtained from the Chief of the Personnel Policy and Readiness Division of the NGB.  The advisory official recommended that the portion of the applicant's request pertaining to Involuntary AIP be approved.  The advisory official further opined that the applicant did serve involuntarily for a period greater than 365 days BOG in Iraq and did qualify for Involuntary AIP for the period he served greater than 365 days BOG.  The advisory official recommended the applicant receive one month of Involuntary AIP.

11.  A copy of the advisory opinion was provided to the applicant for comment.  He did not respond within the given time frame.

12.  Department of the Army Personnel Policy Guidance, paragraph 8-3 (Military Pay and Allowances) provides, in pertinent part, that Soldiers/units who are involuntarily extended by the Secretary of Defense for extension 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.  In addition, 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.

	a.  Qualifying units are those units that are involuntarily extended in current deployment or that are deploying in the future, beyond 12 months BOG.

	b.  Units are defined as those entities that support the Brigade Combat Team (BCT) down to the company level to include separate companies or detachments, and echelons above brigade involuntarily extended by the Secretary of Defense.

	c.  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 AOR.

	d.  Involuntary AIP is calculated at the start of the unit’s original BOG date and ends at the end of the unit’s extension when 51 percent of the unit returns from theater.

	e.  Should a Soldier depart theater for more than 31 days, the Soldier’s BOG is temporarily placed in an inactive status until the Soldier returns to theater.  The BOG clock resumes when the Soldier returns from theater.  The BOG clock does not start over.

	f.  Qualifying Soldier’s chain-of-command will submit a DA Form 4187 to the servicing finance detachment.   One DA Form 4187 may be used per unit as long as the BOG dates are the same for all Soldiers.  A separate DA Form 4187
is needed for all Soldiers with a different BOG date from the main body of the unit.  There is no longer a requirement for each Soldier to sign the agreement.

	g.  Verification of Soldier eligibility on the DA Form 4187 is delegated to the first field grade officer in the chain-of-command.  These payments will stop the day the Soldier is no longer entitled to Hostile Fire Pay (HFP).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his records should be amended to show that the involuntary extension of his unit's deployment in Iraq required him to serve beyond the 365 day BOG requirement in order to be eligible for receipt of Involuntary AIP and that he should be paid retroactive entitlements associated with Involuntary AIP were carefully considered and determined to have merit.

2.  Evidence shows that the applicant served in Kuwait and Iraq during the period from 29 January 2004 to 6 February 2005 for a total of 375 days.

3.  Department of the Army Personnel Policy Guidance provides that Soldiers/
units who are involuntarily extended by the Secretary of Defense for extension 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.

4.  Based on the foregoing, it would be appropriate in this case to amend the applicant's records to show that he was deployed under the provisions of Title 10, U.S. Code, section 12302 during the period from 29 January 2004 to 27 January 2005 [2004 was a leap year] and his deployment was involuntarily extended under the provisions of Title 10, U.S. Code, section 12302 during the period from 28 January 2005 to 6 February 2005.

5.  Additionally, the applicant is entitled to non-prorated payment of Involuntary AIP during the period that he was serving under his unit's involuntary extension.  As a result it would be appropriate that the Defense Finance and Accounting Service pay the applicant all Involuntary AIP benefits to which he is entitled during the period from 28 January 2005 to 6 February 2005.

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.  the applicant was deployed under the provisions of Title 10, U.S. Code, section 12302 during the period from 29 January 2004 to 27 January 2005;

	b.  the applicant's deployment was involuntarily extended under the provisions of Title 10, U.S. Code, section 12302 during the period from 28 January 2005 to 6 February 2005; and

	c.  the applicant is entitled to be paid all benefits associated with Involuntary Assignment Incentive Pay during the period that he was involuntarily deployed under Title 10, U.S. Code, section 12302 in excess of 365 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)                                         AR20090004732



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ABCMR Record of Proceedings (cont)                                         AR20090004732



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