BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090013680 


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 unit's deployment orders and payment of retroactive entitlements associated with Involuntary Assignment Incentive Pay (AIP).

2.  The applicant states, in effect, that his records should be amended to show the involuntary extension of his unit's deployment in Iraq required him to serve beyond the 365 day boots on ground (BOG) requirement in order to be eligible for receipt of Involuntary AIP.  The applicant further states that members of his former unit were approved for receipt of $1,000.00 in AIP entitlements and most of them have received payment.  The applicant separated from the South Dakota Army National Guard (SDARNG) following redeployment and he was not included when his former unit processed its batch request for AIP.  The applicant concludes that his numerous attempts to be paid his AIP entitlement were unsuccessful.

3.  The applicant provides copies of Permanent Order 351-001 and Orders
351-053, both issued by the Office of The Adjutant General, SDARNG, Rapid City, SD, dated 17 December 2003; a copy of Orders 020-301, issued by Headquarters, U.S Army Field Artillery Center, Fort Sill, OK, dated 20 January 2004; his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 7 March 2005; and a DD Form 827 (Application for Arrears in Pay), dated 13 August 2008, as documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error 
or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he was a member of the SDARNG.  He was assigned to Battery A, 2d Battalion, 147th Field Artillery Regiment during the period of his mobilization.

3.  SDARNG Permanent Orders 351-001, dated 17 December 2003, ordered the applicant's unit and its members to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 on 18 December 2003 for a period not to exceed 535 days.

4.  SDARNG Orders 351-053, dated 17 December 2003, ordered the applicant to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Iraqi Freedom (OIF) on 18 December 2003 for a period not to exceed 535 days.

5.  Fort Sill Orders 020-301, dated 20 January 2004, deployed the applicant's unit and its members to the Central Command (CENTCOM) area of responsibility (AOR) in Iraq in support of OIF on 25 January 2004 for a period of 356 days with possible extension not to exceed 540 days.

6.  The applicant's DD Form 214 for the period ending 7 March 2005 shows he was ordered to active duty under the provisions of Title 10, U.S. Code, section 12302 in support of OIF and he served for the period 18 December 2003 to
7 March 2005.  The DD Form 214 also shows the applicant served in Kuwait and Iraq for the period 29 January 2004 through 6 February 2005, for a total of 375 days.

7.  The applicant's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 28 February 2006 shows he was 

honorably discharged from the SDARNG and transferred to the Retired Reserve.
Item 18 (Remarks) of his NGB Form 22 shows he served in Kuwait and Iraq from 29 January 2004 to 6 February 2005.

8.  The applicant provides a DD Form 827, dated 13 August 2008, which shows he requested payment for arrears in AIP payment during the period from
29 January 2004 to 6 February 2005.

9.  On 8 January 2010, 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.

10.  The advisory official further opined that the applicant involuntarily served for a period greater than 365 days BOG in Iraq and he did qualify for Involuntary AIP for the period he served greater than 365 days BOG.  On 22 February 2010, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant did not provide a response to the findings and recommendations of the advisory opinion.

11.  Department of the Army Personnel Policy Guidance, paragraph 8-3 (Military Pay and Allowances) provides, in pertinent part, that Soldiers/units who are involuntarily extended by the Secretary of Defense for extension 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.  In addition, 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:

	a.  Qualifying units are those units that are involuntarily extended in current deployment or that are deploying in the future, beyond 12 months BOG;

	b.  Units are defined as those entities that support the Brigade Combat Team (BCT) down to the company level to include separate companies or detachments, and echelons above brigade involuntarily extended by the Secretary of Defense;

	c.  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 AOR;

	d.  Involuntary AIP is calculated at the start of the unit’s original BOG date and ends at the end of the unit’s extension when 51 percent of the unit returns from theater;

	e.  Should a Soldier depart theater for more than 31 days, the Soldier’s BOG is temporarily placed in an inactive status until the Soldier returns to theater.  The BOG clock resumes when the Soldier returns to theater.  The BOG clock does not start over;

	f.  Qualifying Soldier’s chain-of-command will submit a DA Form 4187 (Personnel Action) to the servicing finance detachment.   One DA Form 4187 may be used per unit as long as the BOG dates are the same for all Soldiers.  A separate DA Form 4187 is needed for all Soldiers with a different BOG date from the main body of the unit.  There is no longer a requirement for each Soldier to sign the agreement; and

	g.  Verification of a Soldier's eligibility on the DA Form 4187 is delegated to the first field grade officer in the chain-of-command.  These payments will stop the day the Soldier is no longer entitled to Hostile Fire Pay (HFP).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his records should be amended to show the involuntary extension of his unit's deployment in Iraq required him to serve beyond the 365 days BOG requirement in order to be eligible for receipt of Involuntary AIP and that he should be paid retroactive entitlements associated with Involuntary AIP were carefully considered and determined to have merit.

2.  The available evidence shows the applicant served in Kuwait and Iraq during the period from 29 January 2004 to 6 February 2005 for a total of 375 days.

3.  Department of the Army Personnel Policy Guidance provides that Soldiers/
units who are involuntarily extended by the Secretary of Defense for extension 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.

4.  Based on the foregoing, it would be appropriate to amend the applicant's records to show that he was deployed under the provisions of Title 10, U.S. Code, section 12302 during the period 29 January 2004 to 27 January 2005 (2004 was a leap year) and his deployment was involuntarily extended under the provisions of Title 10, U.S. Code, section 12302 during the period 28 January 2005 to 6 February 2005.

5.  Additionally, the applicant is entitled to non-prorated payment of Involuntary AIP during the period that he was serving under his unit's involuntary extension.  As a result, it would be appropriate for the Defense Finance and Accounting Service (DFAS) to pay the applicant all Involuntary AIP benefits to which he is entitled during the period 28 January 2005 to 6 February 2005.

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 deployed under the provisions of Title 10, U.S. Code, section 12302 during the period 29 January 2004 to 27 January 2005;

	b.  showing the applicant's deployment was involuntarily extended under the provisions of Title 10, U.S. Code, section 12302 during the period 28 January 2005 to 6 February 2005; and

	c.  paying the applicant all entitlements associated with Involuntary AIP during the period he was involuntarily deployed under Title 10, U.S. Code, section 12302 in excess of 365 days.



      ____________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)                                         AR20090013680



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ABCMR Record of Proceedings (cont)                                         AR20090013680



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