BOARD DATE:	  5  November 2009

		DOCKET NUMBER:  AR20090008701 


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 currently serving on active duty as a member of the Texas Army National Guard (TXARNG) assigned to Battery C, 4th Battalion of the 133rd Field Artillery Regiment.  He currently holds the rank of sergeant (SGT)/pay grade E-5.

2.  Texas Military Forces, Joint Forces Headquarters, Adjutant General's Department, Austin, TX, Orders 009-800, dated 9 January 2004, ordered the 

applicant to active duty under the involuntary provisions of Presidential Executive Order 13223, dated 14 September 2001, and Title 10, U.S. Code, section 12302 in support of Operation Iraqi Freedom effective 19 January 2004 for a period not to exceed 545 days.

3.  The applicant's DD Form 214 for the period ending 29 April 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 19 January 2004 through 29 April 2005, a total of 467 days.

4.  The applicant provides a DA Form 4187 (Personnel Action), dated 22 May 2006, which show that he volunteered for a COTTAD and that he acknowledged and accepted reassignments during the 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 16 April 2007 for a period of 282 days.  This form was authenticated by the TXARNG Chief of Staff.

5.  Texas Military Forces, Army National Guard, Austin, TX, Orders 200-484, dated 19 July 2006, ordered the applicant to active duty under the involuntary provisions of Presidential Executive Order 13223, dated 14 September 2001, and Title 10, U.S. Code, section 12302 in support of Operation Iraqi Freedom effective 28 July 2006 for a period not to exceed 545 days.

6.  The applicant's DD Form 214 for the period ending 2 December 2007 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 he served during the period 28 July 2006 through 2 December 2007, for a total of 493 days.  His DD Form 214 also shows he served in Iraq during the period 23 October 2006 through 11 October 2007, for a total of 353 days boots on ground (BOG).

7.  The applicant's DD Forms 214 show that he was involuntarily mobilized during the period 19 January 2004 through 29 April 2005, for a total of 467 days.  The applicant was involuntarily mobilized again during the period 28 July 2006 through 2 December 2007, for a total of 493 days; bringing him to a cumulative total of 960 days of involuntary mobilization.  The applicant completed 730 cumulative days of mobilization under the provisions of Title 10, U.S. Code, section 12302 on 16 April 2007.

8.  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 applicant's application be approved.


9.  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.  It was further opined that the applicant's second involuntary mobilization should have been for the period from 28 July 2006 through 16 April 2007 to complete 730 days in Title 10, U.S. Code, section 12302 status.  It was concluded that the applicant's Title 10, U.S. Code, section 12301(d) COTTAD order should have commenced on 16 April 2007 and continued through 2 December 2007, for a total of 230 days of prorated AIP.  On 2 September 2009, the applicant was provided a copy of this advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  As of 29 October 2009, the applicant had not provided a response to the advisory opinion.

10.  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 release form 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).

11.  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, VA publishing orders.

12.  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.

13.  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.

14.  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.  Evidence shows that the applicant was involuntarily mobilized for 960 days during the periods 19 January 2004 through 29 April 2005 and 28 July 2006 through 2 December 2007.  The applicant completed 730 cumulative days of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302 on 16 April 2007.  As a result, his voluntary COTTAD orders should have commenced on 17 April 2007 and continued through 2 December 2007, for a total of 230 days in COTTAD status.

3.  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 19 January 2004 through 29 April 2005 and 28 July 2006 through 16 April 2007; and voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 17 April 2007 through 2 December 2007.

4.  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 Service (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 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 periods 19 January 2004 through 29 April 2005 and 28 July 2006 through 16 April 2007;

	b.  he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 17 April 2007 through 2 December 2007; and

	c.  he is entitled to 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)                                         AR20090008701



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090008701



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1