BOARD DATE:	  20 August 2009

		DOCKET NUMBER:  AR20090008224 


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 Arkansas Army National Guard (ARARNG) assigned to ARNG Maneuver Training Center located at Fort Chaffee, Arkansas.  He currently holds the rank of sergeant (SGT)/pay grade E-5.

2.  Military Department of Arkansas, Office of the Adjutant General, Camp Robinson, North Little Rock, Arkansas, Orders 242-270, dated 30 August 2002, 
ordered the applicant to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Noble Eagle effective 3 September 2002 for a period not to exceed 365 days.

3.  The applicant's DD Form 214 for the period ending 31 July 2003, shows he was ordered to active duty under the provisions of Title 10, U.S. Code, section 12302 in support of Operation Noble Eagle and served for the period from 3 September 2002 through 31 July 2003, a total of 332 days.

4.  820th Signal Company (Cable & Wire), Mesquite, Texas, Orders
05-133-00113, dated 13 May 2005, ordered the applicant to active duty in support of Operation Iraqi Freedom effective 14 May 2005 for a period of 545 days.

5.  The applicant provides a DA Form 4187 (Personnel Action), which shows he volunteered for a 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 3 July 2006.

6.  The applicant's DD Form 214 for the period ending 27 August 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 14 May 2005 through 27 August 2006, for a total of 471 days.  This DD Form 214 also shows the applicant served in Kuwait during the period from 31 July 2005 through 26 July 2006, for a total of 361 days boots on ground (BOG).

7.  The applicant's record shows that he was mobilized during the period from 3 September 2002 through 31 July 2003, a total of 332 days.  The applicant was mobilized once again for the period from 14 May 2005 through 27 August 2006, for a total of 471 days, bringing him to a cumulative total of 803 days of involuntary mobilization.  The applicant completed 730 cumulative days of mobilization under the provisions of Title 10, U.S. Code, section 12302 on 15 June 2006.

8.  820th Signal Company (Cable & Wire), Mesquite, Texas, Memorandum, dated 6 July 2007, shows the applicant's company commander requested assistance with resolving the applicant's COTTAD AIP problem from the Commander of the 90th Regional Readiness Command located in Little Rock, Arkansas. 

9.  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.

10.  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 should have been issued an order under the voluntary provisions of Title 10, U.S. Code, section 12301(d) and his COTTAD status should have commenced on 16 June 2006 and continued through 27 August 2006, for a total of 73 days of eligibility for AIP.  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 or a rebuttal.  The applicant did not respond.

11.  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).

12.  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 U.S. Army Human Resources Command (USAHRC) -Alexandria publishing orders.

13.  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.

14.  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.

15.  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. 

3.  Evidence shows that the applicant was involuntarily mobilized for 803 days during the periods from 3 September 2002 through 31 July 2003 and from 14 May 2005 through 27 August 2006.  The applicant completed 730 cumulative days of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302 on 15 June 2006.  

4.  Evidence shows that although the applicant volunteered for a COTTAD under the provisions of Title 10, U.S. Code, section 12301(d), he remained mobilized under the provisions of Title 10, U.S. Code, section 12302 for a cumulative total of 803 days of involuntary mobilization; which exceeded the maximum allowed by law.  Accordingly, he should have been 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 16 June 2006 through 27 August 2006, for a total of 73 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 16 June 2006 through 27 August 2006.

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 to which he was 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.  the applicant was involuntarily mobilized under the provisions of Title 10, U.S. Code, section 12302 during the period periods 3 September 2002 through 31 July 2003 and 14 May 2005 through 15 June 2006; 


	b.  he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 16 June 2006 through 27 August 2006, the date of his release from active duty in support of Operation Enduring Freedom; and

	c.  he 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)                                         AR20090008224



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ABCMR Record of Proceedings (cont)                                         AR20090008224



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