IN THE CASE OF:	  

		BOARD DATE:	  13 August 2009

		DOCKET NUMBER:  AR20090008573 


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 enrollment in the Assignment Incentive Pay (AIP) for Special Mission Units (SMU) Program and payment of retroactive entitlements associated with SMU AIP.

2.  The applicant states that he retired from active duty after 30 years of honorable active federal service as a helicopter and fixed wing aircraft pilot on 31 October 2008.  He also states that on 1 November 2008, he was recalled to active duty for a period of three years to fill a vacant fixed wing pilot authorized critical position.  The applicant points out that prior to his retirement, he had received AIP since February of 2006.  However, his AIP stopped due to his Retiree Recall status, which is not in compliance with the provisions of the AIP program.  The applicant concludes that he meets the operational and training requirements prescribed by United States Code, Title 37, Chapter 5, Subsection 307a; Public Law 107-314; the National Defense Authorization Act; and Army Regulation 601-10 (Management and Recall to Active Duty of Retired Soldiers in Support of Mobilization and Peacetime Operations).

3.  The applicant provides copies of his Recall Order and a United States Army Special Operations Command (USASOC) Policy Memorandum as documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 15 September 1977.  On        17 October 1978, he was appointed as a warrant officer and served on active duty in that capacity until he retired on 31 October 2008.  The applicant possessed primary military occupational specialty (PMOS) 155AC (Fixed Wing Aviator) and Secondary MOS 153AO (Rotary Wing Aviator) during his active duty tenure.  At the time of his retirement, the applicant held the rank of chief warrant officer five (CW5)/pay grade W-5.

2.  Section 616 (AIP) of Public Law 107-314, effective 2 December 2002, amended Chapter 5 of Title 37, United States Code by inserting a new section after section 307, subsection 307a (Special pay: AIP).  This new section authorized the Secretary of the Army to pay monthly incentive pay to a member of the uniformed service who performs service, while entitled to basic pay, in an assignment designated by the Secretary.  This section stipulated the period for which incentive pay would be provided under this section and the monthly rate of the incentive pay for a member would be specified in a written agreement between the Secretary concerned and the member.  It further stipulated that incentive pay paid to a member under this section was in addition to any other pay and allowances to which the member was entitled.  Initially, no agreement under this section could be entered into after 31 December 2005.  However, congressional reauthorization subsequently modified the final date for entering new agreements to 31 December 2008.

3.  Office of the Under Secretary of Defense, Washington, D.C., Memorandum, dated 9 January 2006, Subject:  Army AIP for SMUs, shows the Acting Principal Deputy approved the Army's request to implement AIP for SMUs.  This approval authorized payment of $750 per month ($9,000 per year) in AIP to enlisted members and warrant officers who had served in an SMU operator billet for less than three years (apprentice level) and $1,000 per month ($12,000 per year) in AIP to enlisted members and warrant officers who had served in an SMU operator billet for three or more years (journey level) in exchange for their agreement to continue to serve in an assignment or accept an assignment to a SMU operator billet for 12 to 36 months as long as the agreement was entered into no later than 31 December 2007.  The Acting Principal Deputy continued that this incentive program was intended to support Special Operations Forces (SOF) enlisted member and warrant officer manning of SMUs.  The Acting Principal Deputy also approved the following additional elements of the Army's request:

	a.  Only SMU enlisted members and warrant officers serving in operator billets are considered eligible; and

	b.  Eligible members must sign a written agreement to serve one to three years in an SMU assignment, and shall not be paid AIP under the Special Operations Command's (SOCOM) current program (SOF members serving in Major Force Program-11 (MFP-11) billets with over 25 years of active duty service who agree to continue in the billet for a period not to exceed the member's completion of 30 years of active service).  

4.  Office of the Under Secretary of Defense, Washington, D.C., Memorandum, dated 23 March 2006, Subject:  Army AIP for SMUs - Technical Correction to PDUSD(P&R) [Performing the Duties of the Principal Deputy (Plans and Resources)] Memorandum dated January 9, 2006 shows the Acting Principal Deputy modified the aforementioned memorandum by changing the second bullet on page one of the memorandum [as appears in paragraph 3b above] to stipulate:  Eligible members must sign a written agreement to serve one to three years in an SMU assignment.  Members paid AIP for assignment in an Army SMU billet may not be in receipt of AIP for service in a SOCOM MFP-11 SOF billet for the same period.

5.  Office of the Under Secretary of Defense, Washington, D.C., Memorandum, dated 8 March 2008, Subject:  Army AIP for SMUs - Program Continuation shows the Principal Deputy extended approval of the Army SMU AIP Program through 31 December 2009, subject to congressional reauthorization of section 307a of Title 37, United States Code and the Army funding this request within available resources.  The Principal Deputy stipulated that this memorandum only applied to enlisted members and warrant officers serving in Army SMU operator billets through 31 December 2008.

6.  Headquarters, USASOC, Fort Bragg, North Carolina, Memorandum, dated 1 February 2006, Subject:  Procedures for Implementation of the SMU AIP shows the Commanding General established policy and implemented procedures for the Army's SMU AIP Program as provided for in Office of the Under Secretary of Defense, Washington, D.C., Memorandum, dated 9 January 2006.  The purpose of this policy memorandum was to ensure adherence to section 307a of Title 37, United States Code along with Office of the Secretary of Defense and Army policy.  This initial policy memorandum stipulated that these procedures would remain in effect until 31 December 2007, discontinuance of the SMU AIP Program, or until revised by the Commanding General of USASOC.  However, the program was extended to an undetermined date or until discontinuance of the SMU AIP Program or unless revised by the Commanding General of USASOC by a memorandum from this same headquarters, dated 12 October 2007.

7.  A DA Form 4187 (Personnel Action), dated 8 February 2006, shows the applicant entered into a written agreement to serve in an SMU billet for a period of 12 months and agreed to accept AIP at the rate of $1,000 per month for 12 months from the date of the agreement for each month he served in the assignment under the agreement.  This form also shows the specific billet to which the applicant was assigned and the date that he completed the requisite training.

8.  An extract from the applicant's military pay account history as of 21 December 2006 shows the applicant's entitlement to AIP at the rate of $1,000 per month began effective 8 February 2006.

9.  United States Army Human Resources Command, Alexandria, Virginia, Orders 38-1, dated 7 February 2008, retired the applicant from active service and released him from assignment and duty effective 31 October 2008.  This order also placed him on the retired list effective 1 November 2008.

10.  United States Army Human Resources Command, St. Louis, Missouri, Orders A-09-817906, dated 16 September 2008, recalled the applicant from retired status under the provisions of section 688 of Title 10, United States Code, effective 1 November 2008, for a period of 1095 days [three years] with a projected end date of 31 October 2011.

11.  A DA Form 4187, dated 1 November 2008, shows the applicant entered into a written agreement to serve in an SMU billet for a period of 36 months and agreed to accept AIP at the rate of $1,000 per month for 36 months from the date of the agreement for each month he served in the assignment under the agreement.  This form also shows the specific billet to which the applicant was assigned and the date that he completed the requisite training.

12.  Electronic mail correspondence between a member of the applicant's unit's staff and a member of the Army Deputy Chief of Staff, G-1, dated 12 November 2008, shows his request for SMU AIP dated 1 November 2008, was denied.  The Army G-1 staff member stated the basis for denial was that she spoke to her "boss and he concurs that Retired Recall should not be eligible for AIP.  They are on ados [active duty for operational support (ADOS)] orders and are not eligible for AC [Active Component] special pays.  AIP requires a contract to remain in the MOS for a certain number of years.  Retiree Recalls cannot do that.  Pay for [the applicant] should be stopped."

13.  Headquarters, USASOC, Fort Bragg, North Carolina, Memorandum, dated 5 January 2009, Subject:  AIP for [the applicant] shows the Deputy Chief of Staff, G-1, requested authority to approve SMU AIP for the applicant based upon the facts that he met all requirements in accordance with Office of the Under Secretary of Defense, Washington, D.C., Memorandum, dated 9 January 2006, and had entered into a three year contract as stated on his DA Form 4187.  The USASOC G-1 commented on the applicant's prior service and assured the Army G-1 that the applicant was fully qualified and would be solely assigned against the billet listed on the DA Form 4187.  The USASOC G-1 continued that as a proven aviator with extensive combat experience, the applicant's leadership was absolutely critical to success on the battlefield.  He concluded that it was essential to retain the applicant and provide him compensatory pay for his unique qualifications.  On 20 July 2009, a telephonic conversation between a member of the ABCMR staff and the previously quoted staff member of the Army Deputy Chief of Staff, G-1, confirmed this request had been denied during a telephonic conversation between her supervisor and the USASOC G-1.

14.  Paragraph 1-6 (Status of recalled retired Soldiers) of Army Regulation 601-10 provides:

	a.  A recalled retiree is a retired Soldier who is ordered to active duty from the Retired Reserve or the retired list under Title 10 United States Code section 688(a), section 12301(a), or section 12301(d) and serves in his or her retired status.

	b.  Regular Army retirees and members of the Retired Reserve who are recalled to active duty under the provisions of Title 10 United States Code section 688(a) will be included in the active duty end strength.  Members of the Retired Reserve recalled to active duty under the provisions of Title 10 United States Code section 12301(d) will be placed on ADOS tours and the strength accounting will be governed by the policies for those tours.

15.  Paragraph 1-7 (Pay of retired Soldiers ordered to active duty) of Army Regulation 601-10 provides that retired pay will automatically be suspended for retired Soldiers ordered to active duty for over 30 days.  On being ordered to active duty, these retired Soldiers are entitled to receive active duty pay and allowances based upon their grade and length of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show his enrollment in the SMU AIP Program and be paid retroactive entitlements associated with SMU AIP were carefully considered and determined to have merit.

2.  The statute pertaining to AIP authorizes the Secretary of the Army to pay monthly incentive pay to a member of the uniformed service who performs service, while entitled to basic pay, in an assignment designated by the Secretary.  This section mandates the period for which incentive pay will be provided under this section and the monthly rate of the incentive pay for a member will be specified in a written agreement between the Secretary concerned and the member.  It further mandates that incentive pay paid to a member under this section is in addition to any other pay and allowances to which the member is entitled.  There is no indication in the statute that Soldiers who have been recalled to active duty from the retired list are ineligible to receive SMU AIP.

3.  Evidence shows the applicant received SMU AIP while on active duty prior to his retirement.

4.  The applicant was recalled to active duty from the retired list for a period of three years under the provisions of section 688(a) of Title 10 United States Code.
On being ordered to active duty, his retired pay was suspended and he became entitled to receive active duty pay and allowances based upon his grade and length of service.

5.  On 1 November 2008, the applicant entered into a written agreement to serve in an authorized SMU billet for a period of 36 months and agreed to accept AIP at the rate of $1,000 per month for 36 months from the date of the agreement for each month he served in the assignment under the agreement.  Following termination of the applicant's AIP, the USASOC G-1 submitted a written request to the Army G-1 seeking authority to approve SMU AIP for the applicant based upon the facts that he met all statutory and regulatory eligibility requirements.

6.  A member of the Army G-1 staff denied the applicant's request based upon their opinion that retirees recalled to active duty on ADOS orders are not eligible for Active Component special pays.  Additionally, they opined that AIP requires a contract to remain in the MOS for a certain number of years and Retiree Recalls cannot do that.  

7.  This logic does not apply in the applicant's case at all.  Official orders recalled the applicant to active duty from the retired list for a period of three years under the provisions of section 688(a) of Title 10 United States Code; he is not serving on ADOS orders and he will remain on active duty long enough to fulfill the requirements of his AIP agreement.  In the event his tour of duty is terminated prior to the end of the agreement, his AIP entitlements should be terminated accordingly.

8.  Based on the foregoing, it would also be appropriate at this time to amend the applicant's records to show that his request for SMU AIP was approved effective 1 November 2008.


9.  Additionally, the applicant is entitled to retroactive payment of SMU AIP from 1 November 2008 until the completion of his period of active duty status or termination of his eligibility status, whichever occurs first.  As a result it would be appropriate that the Defense Finance and Accounting Service (DFAS) pay the applicant all SMU AIP benefits to which he is entitled beginning 1 November 2008.

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.  showing the applicant's request for SMU AIP effective 1 November 2008 was approved; and

	b.  paying the applicant all pay entitlements associated with Special Mission Unit Assignment Incentive Pay from 1 November 2008 until the completion of his period of active duty status or termination of his eligibility status, whichever occurs first.



      _______ _   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)                                         AR20090008573





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090008573



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1