IN THE CASE OF:	

		BOARD DATE:	  06 April 2010

		DOCKET NUMBER:  AR20090015890 


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 amendment of his Contingency Operation Temporary Tour of Active Duty (COTTAD) Orders and payment of retroactive entitlements associated with Assignment Incentive Pay (AIP).

2.  The applicant states his records should be amended to show he completed 730 days of involuntary mobilization under the provisions of section 12302 of Title 10, U.S. Code, section 12302 [involuntary mobilization] 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 his orders to active duty, DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Forms 215 (Correction to DD Form 214), an AIP volunteer packet, and two memoranda from the Office of the Adjutant General, Department of the Army and the Air Force Florida National Guard.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he is a member of the Florida Army National Guard assigned to the 870th Engineer Battalion (Sapper) based in Crestview, FL. He is currently holds the rank/grade of staff sergeant (SSG)/E-6.

2.  State of Nebraska, Military Department, Office of the Adjutant General, Lincoln, NB, Orders 304-280, dated 31 October 2002, show the applicant was 
ordered to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Enduring Freedom (OEF) on 1 November 2002 for a period not to exceed 365 days.

3.  The applicant's DD Form 214 for the period ending 28 October 2003 shows he was ordered to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of OEF and Operation Joint Forge and served for the period 1 November 2002 through 28 October 2003, a total of 362 days.

4.  State of Florida, Department of Military Affairs, Office of the Adjutant General, Saint Francis Barracks, Saint Augustine, FL, Orders 053-192, dated 24 March 2005, show the applicant was ordered to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of OEF on 1 April 2005 for a period not to exceed 545 days.

5.  The applicant's records contain (and he also provides) a COTTAD and AIP volunteer packet, initiated in January 2006, which shows that, in return for receiving AIP, he volunteered to serve beyond his 24-month involuntary mobilization maximum and remain on active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d) in a COTTAD status in order to complete 12 months boots on the ground (BOG) duty in theater.

6.  The applicant's DD Form 214 for the period ending 29 July 2006 shows he was ordered to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of OEF and served for the period 1 April 2005 through 29 July 2006, a total of 485 days.  This DD Form 214 also shows the applicant served in Afghanistan for the period 9 July 2005 through 6 July 2006, a total of 363 days BOG.

7.  The record shows that the applicant was involuntarily mobilized during the period 1 November 2002 through 28 October 2003, a total of 362 days and for the period 1 April 2005 through 29 July 2006, for an additional 485 days; bringing him to a grand total of 847 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 3 April 2006.

8.  Department of the Army and Air Force, Florida National Guard, Office of the Adjutant General, Saint Francis Barracks, Saint Augustine, FL, memorandum, dated 20 February 2009, shows a representative of the Adjutant General authorized the release of the applicant to extend beyond 730 cumulative days [of involuntary mobilization] in order to complete 365 days BOG with the 53rd Brigade Combat Team with duty in Afghanistan staring on or about 4 April 2006 for a period of 177 days.
9.  Department of the Army and Air Force, Florida National Guard, Office of the Adjutant General, Saint Francis Barracks, Saint Augustine, FL, memorandum, dated 20 February 2009, shows the G3 Mobilization Plans Officer requested assistance from the Army Board for Correction of Military Records (ABCMR) in obtaining the appropriate COTTAD or Contingency Operations for Active Duty Operational Support (COADOS) orders in order to correct the applicant's records and facilitate payment of his AIP entitlements.

10.  An advisory opinion was obtained from the Chief, Personnel Policy and Readiness Division of the National Guard Bureau.  The advisory official recommended approval of the application.

11.  The advisory official opined that based on 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.

12.  It was further opined that the applicant's second involuntary mobilization should have been for the period 1 April 2005 through 3 April 2006 to complete 730 days in 12302 status.  It was concluded that the applicant's Title 10, U.S. Code, section 12301(d) COTTAD order should have commenced on 4 April 2006 and continued through 29 July 2006 for a total of 117 days in AIP eligibility status.  The applicant was provided a copy of the advisory opinion on 3 March 2010 and concurred with the findings and recommendations on 8 March 2010.

13.  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 from active duty 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).

14.  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 continental United States (CONUS) locations and 545 days for Soldiers serving outside continental United States (OCONUS) locations.  Soldiers supporting valid Global War on Terrorism requirements could request COTTAD orders totaling 1095 days.  Requests 
beyond authorized durations required Department of the Army Deputy Chief of Staff G-1 approval prior to Human Resources Command-Alexandria publishing orders.

15.  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 the required BOG period with their units, and voluntarily request a COTTAD in order to complete 12 months BOG with their units (OCONUS 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 of 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 are 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.

16.  The term, COADOS, 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.


17.  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 of 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 of 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 847 days during the periods 1 November 2002 through 28 October 2003 and 1 April 
2005 through 29 July 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 3 April 2006.  Additionally, his voluntary COTTAD orders should have commenced on 4 April 2006 and continued through 29 July 2006.

3.  The advisory official 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 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 1 November 2002 through 28 October 2003 and 1 April 2005 through 3 April 2006, and voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 4 April 2006 through 29 July 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 Service pay the applicant all AIP benefits entitled during the period 4 April 2006 through 29 July 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 showing:

	a.  the applicant was involuntarily mobilized under the provisions of Title 10, U.S. Code, section 12302 during the periods 1 November 2002 through 28 October 2003 and 1 April 2005 through 3 April 2006;
	b.  he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 4 April 2006 through 29 July 2006; 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)                                         AR20090015890



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ABCMR Record of Proceedings (cont)                                         AR20090015890



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