IN THE CASE OF:	  

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090008034 


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, in effect, requests:

	a.  payment of the difference between Type 1 Basic Allowance for Housing (BAH) and Type II BAH-Differential (BAH-DIFF) for the duration of his mobilization from 16 June 2004 through 12 September 2005,

	b.  payment of BAH-DIFF for the time period beginning when he was mobilized on 28 June 2006 through 1 August 2007 when his BAH-DIFF was initiated,

	c.  amendment of his mobilization orders for the period commencing 28 June 2006,

	d.  issuance of Contingency Operation Temporary Tour of Active Duty (COTTAD) [currently referred to as Contingency Operation for Active Duty Operational Support (CO-ADOS)] Orders for the period 31 March 2007 through 10 June 2008, and

	e.  payment of retroactive entitlements associated with Assignment Incentive Pay (AIP) for the COTTAD period 31 March 2007 through 10 June 2008.

2.  The applicant states, in effect, that he is entitled to BAH-DIFF due to the fact he was granted joint custody of his daughter when he and his former spouse were divorced.  He continues that he provided the required documentation to validate his entitlement to BAH-DIFF prior to each of his deployments, but did not receive the proper pay.  The applicant states that his numerous attempts to resolve this matter for the past several years, to include a Congressional Inquiry, have been unsuccessful.

3.  The applicant further 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.

4.  The applicant provides copies of a self-authored narrative, a birth certificate, a divorce decree, mobilization orders, Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statements (LESs), two DD Forms 214 (Certificate of Release or Discharge from Active Duty), and correspondence from a Congressional Inquiry as documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty as a member of the Regular Army.  However, he was serving as a member of the Texas Army National Guard (TXARNG) during the time period addressed in these proceedings.

2.  The applicant's daughter was born on 4 August 1995.

3.  The applicant was divorced on 14 June 2001.  Pursuant to the order of the court, the applicant was required to make a child support payment of $422.00 per month until his daughter becomes 18 years of age, dies, marries, or otherwise becomes emancipated, unless she becomes 18 years of age while enrolled in and attending secondary school on a full-time basis.  Then such support shall continue until she completes secondary school or becomes 20 years of age, whichever occurs first.

4.  TXARNG Orders 160-468, dated 8 June 2004, 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 16 June 2004 for a period not to exceed 545 days.

5.  The applicant's DD Form 214 for the period ending 12 September 2005 shows he was ordered to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302, in support of Operation Enduring Freedom and he served for during the period 16 June 2004 through 12 September 2005, a total of 454 days.

6.  The applicant's available LESs for this period of mobilization show he was not paid BAH at the "with dependent" rate and/or BAH-DIFF.

7.  TXARNG Orders 177-193, dated 26 June 2006, ordered the applicant to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302, in support of Operation Iraqi Freedom effective 28 June 2006 for a period not to exceed 575 days.

8.  U.S. Army Human Resources Command Orders A-06-713390, dated 7 June 2001, ordered the applicant to active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d), for CO-ADOS in support of Operation Iraqi Freedom effective 31 May 2007 with a tentative end date of 24 March 2008 for a total of 299 days.

9.  U.S. Army Human Resources Command Orders A-10-720264, dated 3 October 2007, ordered the applicant to active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d), for CO-ADOS in support of Operation Iraqi Freedom effective 7 October 2007 with a tentative end date of 24 June 2008 for a total of 262 days.

10.  The applicant's DD Form 214 for the period ending 10 June 2008 shows he was ordered to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302, in support of Operation Enduring Freedom and he served in this status during the period 28 June 2006 through 6 October 2007 for a total of 466 days.  This form also shows he served under the voluntary provisions of Title 10, U.S. Code, section 12301(d), during the period 7 October 2007 through 29 August 2008 [should read 10 June 2008] for a total of 248 days in CO-ADOS status.

11.  The applicant's available LESs for this period of mobilization show he was not paid BAH at the "with dependent" rate and/or BAH-DIFF until 1 August 2007.

12.  The applicant's LES for check date 15 August 2007 shows he was paid retroactive CO-ADOS AIP entitlements for the period 30 January 2007 through 30 July 2007 at the rate of $1,000.00 per month.  However, his LESs for the remainder of this mobilization show he only received AIP for four additional pay periods and it was at a lesser rate.

13.  In summary, the applicant's DD Forms 214 show that he was involuntarily mobilized under the involuntary provisions of Title 10, U.S. Code, section 12302, during the periods 16 June 2004 through 12 September 2005 for a total of 454 days and 28 June 2006 through 6 October 2007 for a total of 466 days, bringing him to a cumulative total of 920 days of involuntary mobilization.  The applicant completed 730 cumulative days of mobilization under the provisions of Title 10, U.S. Code, section 12302, on 30 March 2007.

14.  An advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau.  The opinion provided that in accordance with Military Pay Message - Active Component Message 00-05 and Military Pay Message - Reserve Component Message 00-03, "a divorced member having joint custody of the dependents, but required to pay child support and the ex-spouse is not in the military, is entitled to BAH without dependents and BAH-DIFF if not assigned to government quarters."  The applicant met all the criteria and provided the correct documentation to be eligible for BAH-DIFF prior to both deployments and as such, is entitled to the benefits.

15.  An advisory opinion was obtained from the Chief, Claims Branch, Directorate of Debt and Clams Management, DFAS.  The opinion provided that the applicant was not paid his full BAH entitlements during his periods of mobilization and recommended partial approval of his claim.  DFAS conducted a detailed audit of his pay history and determined he should have been paid at the "with dependent" rate while serving on active duty from 16 June 2004 through 12 September 2005 and then again from 28 June 2006 through 1 August 2007.

16.  DFAS also determined the applicant was improperly compensated during two periods when he received the "without dependent" rate.

	a.  From 28 June 2006 through 31 December 2006 he received $1,034.00 per month when he should have received $1,525.00 per month.

	b.  From 1 January 2007 through 15 August 2007 he received $1,079.00 per month when he should have received $1,515.00 per month.

17.  An advisory opinion was obtained from the Chief, Personnel Policy and Readiness Division of the National Guard Bureau (NGB).  The advisory official recommended that the application be approved.  The advisory official 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 can only be involuntarily mobilized for 730 days in Title 10, U.S. Code, section 12302, status.

18.  It was further opined that the applicant's second involuntary mobilization should have been for the period 28 June 2006 through 30 March 2007 to complete 730 days in Title 10, U.S. Code, section 12302, status.  It concluded that the applicant's Title 10, U.S. Code, section 12301(d), COTTAD orders should have commenced on 31 March 2007 and continued through 10 June 2008 for a total of 438 days of prorated AIP.

19.  On 17 February 2010, the applicant was provided a copy of these advisory opinions for information and to allow him the opportunity to submit comments or a rebuttal.  As of 24 March 2010, the applicant had not provided a response to any of the advisory opinions.

20.  Department of Defense Financial Management Regulation (DODFMR) provides at paragraph 260406.D.1 that effective 31 December 2005, when a member is divorced from a nonmember and they share legal custody of a child and the ex-spouse is awarded primary physical custody, then the member is considered a noncustodial parent for the purpose of entitlement to BAH.  If the member's court-ordered child support is less than the applicable BAH-DIFF rate and the member is not residing in, or assigned to, government quarters, the member is entitled only to BAH at the without dependents rate.  However, members who pay additional support to the ex-spouse having primary custody of the child so that the total child support provided is equal to or more than the BAH-DIFF rate and who are not assigned to single type government quarters are entitled to BAH at the with dependents rate.

21.  Department of the Army Personnel Policy Guidance, paragraph 10-3 in effect at the time of the applicant's mobilization, 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 release from active duty (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).

22.  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 continental United States (CONUS) locations and 545 days for Soldiers serving outside CONUS (i.e., 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 G-1 approval prior to U.S. Army Human Resources Command publishing orders.

23.  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 the required boots-on-the-ground (BOG) period with their units and voluntarily request COTTAD in order to complete 12 months of BOG with their units (OCONUS in U.S. Central Command's area of responsibility).

* Category 2:  Applies to Soldiers mobilized under the provisions of Title 10, U.S. Code, section 12302, under partial mobilization who are already deployed and request COTTAD to complete 12 months of 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, under 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, under partial mobilization who are deployed OCONUS and who request 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 request an extension of their current orders or are 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.

24.  The term, CO-ADOS, is the Army's new terminology for what used to be known as COTTAD.  The terms are synonymous and in both cases, the tour of duty is considered to be on a voluntary basis.

25.  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 of 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 contends his records should be amended to show:

	a.  he was entitled to BAH DIFF during his periods of mobilization;

	b.  he completed 730 days of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302;

	c.  he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12031(d), for any days in excess of 730 on COTTAD orders; and

	d.  he is authorized payment of retroactive entitlements associated with AIP for the COTTAD period.

2.  Each of his contentions were carefully considered and determined to have merit.

3.  The evidence clearly shows the applicant was divorced on 14 June 2001 and was required to pay child support in the amount of $422.00 per month.

4.  The DODFMR clearly shows the applicant was entitled to receive BAH at the "with dependent" rate from 28 June 2006 through 15 August 2007.

5.  The evidence clearly shows the applicant did not receive BAH-DIFF during two periods when he received the "without dependent" rate.

	a.  From 28 June 2006 through 31 December 2006 he received $1,034.00 per month when he should have received $1,525.00 per month.

	b.  From 1 January 2007 through 15 August 2007 he received $1,079.00 per month when he should have received $1,515.00 per month.

6.  As a result, it would be appropriate that DFAS pay the applicant all BAH benefits for the period of entitlement.

7.  The evidence shows the applicant was involuntarily mobilized for 920 days during the periods 16 June 2004 through 12 September 2005 and 28 June 2006 through 6 October 2007.  The applicant completed 730 cumulative days of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302, on 30 March 2007.  As a result, his voluntary COTTAD orders should have commenced on 31 March 2007 and continued through 29 August 2008 for a total of 438 days in COTTAD status.

8.  Based on the foregoing, it would be appropriate in this case to amend the applicant's records to show that he was involuntarily mobilized under the provisions of Title 10, U.S. Code, section 12302, during the periods 16 June 2004 through 12 September 2005 and 28 June 2006 through 30 March 2007; and voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d), during the period 31 March 2007 through 29 August 2008.

9.  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 DFAS pay the applicant all AIP benefits for 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 and State records of the individual concerned be corrected by:

	a.  showing he was involuntarily mobilized under the provisions of Title 10, U.S. Code, section 12302, during the periods the periods 16 June 2004 through 12 September 2005 and 28 June 2006 through 30 March 2007;

	b.  showing he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d), during the period 31 March 2007 and continued through 29 August 2008;

	c.  showing he is entitled to be paid all benefits associated with AIP during the period that he was voluntarily mobilized under Title 10, U.S. Code, section 12301(d);

	d.  showing he was entitled to receive BAH at the "with dependent" rate while serving on active duty from 16 June 2004 through 12 September 2005 and from 28 June 2006 through 1 August 2007; and

	e.  auditing his pay records and paying to him any and all monies owed as a result of this correction to his records



      ___________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)                                         AR20090008034



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ABCMR Record of Proceedings (cont)                                         AR20090008034



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