IN THE CASE OF:	 

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090012102 


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, Contingency Operation Temporary Tour of Active Duty (COTTAD) Orders,
DD Form 214 (Certificate of Release or Discharge from Active Duty), 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.  The applicant states that his AIP packet was completed and forwarded to his unit of attachment, the 48th Brigade Combat Team, for processing and he is unaware of the status of his application.

3.  The applicant provides copies of two DD Forms 214, a COTTAD application, orders to active duty, and a National Guard Bureau (NGB) Form 23B (Army National Guard Retirement Points History Statement), prepared on 24 October 2006, as documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was discharged from the Illinois Army National Guard (ILARNG), effective 6 September 2006, with an honorable characterization of service.  The record also shows that the applicant was assigned to Company B, 2d Battalion, 130th Infantry Regiment, during the periods of mobilization which are the subject of this application.

2.  Department of Military Affairs, State of Illinois, Springfield, IL, Orders 
003-614, dated 3 January 2002, ordered the applicant to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Enduring Freedom (OEF), effective 4 January 2002, for a period not to exceed 365 days.

3.  The applicant's DD Form 214 for the period ending 16 August 2002 shows he was involuntarily ordered to active duty under the provisions of Title 10, U.S. Code, section 12302 in support of OEF and he served for the period 4 January 2002 through 16 August 2002, a total of 225 days.  This DD Form 214 also shows the applicant served in Germany for the period 23 January 2002 through 18 July 2002, for a total of 177 days overseas.  The applicant's NGB Form 23B further confirms he continuously served on active duty during this period of time.

4.  The applicant provides a DA Form 1058-R (Application for Active Duty for Training, Active Duty for Special Work, Temporary Tour of Active Duty, and Annual Training for Soldiers of the Army National Guard and U.S. Army Reserve), initiated on 14 December 2004, which shows 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 26 May 2006 for a period of 160 days.

5.  Department of Military Affairs, State of Illinois, Springfield, Orders 364-060, dated 29 December 2004, involuntarily ordered the applicant to active duty in support of Operation Iraqi Freedom (OIF), effective 5 January 2005, for a period not to exceed 505 days.

6.  The applicant's DD Form 214 for the period ending 6 June 2006 shows he was involuntarily ordered to active duty under the provisions of Title 10, U.S. Code, section 12302 in support of OIF and served for the period 5 January 2005 through 6 June 2006, a total of 518 days.  This DD Form 214 also shows the applicant served in Kuwait and Iraq for the period 17 May 2005 through 27 April 2006, for a total of 346 days boots on ground (BOG).  The applicant's NGB Form 23B further confirms he continuously served on active duty during this period of time.

7.  The applicant's DD Forms 214 show that he was involuntarily mobilized during the period 4 January 2002 through 16 August 2002, a total of 225 days.  The applicant was involuntarily mobilized once again for the period 5 January 2005
through 6 June 2006, for a total of 518 days, bringing him to a grand total of 743 days of involuntary mobilization.  The applicant completed 730 cumulative days of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302 on 24 May 2006.

8.  An advisory opinion was obtained from the Chief, Personnel Policy and Readiness Division of the 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 of from 5 January 2005 through 24 May 2006 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 25 May 2006 and continued through 6 June 2006 for a total of 13 days of prorated AIP.  On 17 November 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 18 December 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 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 1095 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.

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 Boots On Ground (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 RC 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 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.  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 743 days during the periods from 4 January 2002 through 16 August 2002 and from
5 January 2005 through 6 June 2006.  Based on applicable law and regulation in effect at the time of his mobilization, the applicant is only authorized to be involuntarily mobilized for a total of 730 days.  As a result, his second involuntary 
mobilization should have ended on 24 May 2006.  Additionally, his voluntary COTTAD orders should have commenced on 25 May 2006 and continued through 6 June 2006.

3.  The 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.

4.  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 from 4 January 2002 through 16 August 2002 and from 5 January 2005 through
24 May 2006 and voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period from 25 May 2006 through 6 June 2006.

5.  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 entitled during the period from 25 May 2006 through 6 June 2006.

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 was involuntarily mobilized under the provisions of Title 10, U.S. Code, section 12302 during the periods from 4 January 2002 through 16 August 2002 and from 5 January 2005 through 24 May 2006;

	b.  showing he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period from 25 May 2006 through 6 June 2006; and

	c.  showing 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)                                         AR20090012102



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ABCMR Record of Proceedings (cont)                                         AR20090012102



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