IN THE CASE OF:	  

		BOARD DATE:	 6 April 2010 

		DOCKET NUMBER:  AR20090018439 


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 for Active Duty Operational Support (COADOS) [formerly referred to as Contingency of 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 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.  He concludes that in spite of numerous attempts, he has not been able to resolve this matter and receive his AIP entitlements.

3.  The applicant provides a copy of mobilization orders, two DD Forms 214 (Certificate of Release or Discharge from Active Duty), his COTTAD request, and a memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he is a member of the U.S. Army Reserve (USAR) assigned to the 310th Sustainment Command (Expeditionary) located in Indianapolis, IN.  He currently holds the rank/grade of sergeant (SGT)/E-5.

2.  The applicant's DD Form 214 for the period ending 6 January 2006 shows he was ordered to active duty under the provisions of Title 10, U.S. Code, section \
12302 in support of Operation Iraqi Freedom (OIF) and that he served for the period 5 November 2004 through 6 January 2006, a total of 428 days.  This form also shows the applicant served in Kuwait and Iraq for the period 29 December 2004 through 9 December 2005, a total of 346 days.

3.  The applicant provides a copy of a DA Form 4187 (Personnel Action), initiated on 4 February 2006 which shows he volunteered to remain on active duty beyond the 730 day involuntary mobilization maximum for an OCONUS (outside the continental U.S.) COTTAD tour in support of OIF.

4.  143d Transportation Command, Orlando, FL, Orders 06-129-00001, dated
9 May 2006, show the applicant was ordered to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of OIF on 10 May 2006 for a period not to exceed 545 days.

5.  On 15 June 2007, All Army Activities (ALARACT) Message 137/2007, in pertinent part, announced that the Army policy for authorizing AIP for Reserve Soldiers since 7 August 2004 was superseded by the new policy effective 15 June 2007.  The message, in pertinent part, states that the Army's policy for AIP eligibility changed from 24 months of cumulative involuntary service under Title 10, U.S. Code, section 12302 status to 24 months of consecutive involuntary service under Title 10, U.S. Code, section 12302 status.  The message also states that all AIP agreements entered prior to the effective date of this message would be honored; however, any new AIP agreements would be subject to the new policy.

6.  The applicant's DD Form 214 for the period ending 8 July 2007 shows that he was ordered to active duty under the involuntary provisions of 10 U.S.C. 12302 in support of OIF and that he served for the period 10 May 2006 through 8 July 2007, a total of 425 days.  This form also shows the applicant served in Kuwait and Iraq for the period 19 June 2006 through 10 June 2007, a total of 357 days.

7.  The record shows that the applicant was involuntarily mobilized for the period 5 November 2004 through 6 January 2006, a total of 428 days.  The applicant was involuntarily mobilized once again for the period 10 May 2006 through 8 July 2007, a total of 425 days; bringing him to a grand total of 853 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 7 March 2007.

8.  Headquarters, 88th Regional Readiness Command, Fort Snelling, MN memorandum, dated 25 April 2008, shows the Deputy Chief of Staff, G3 
requested assistance from the U.S. Army Human Resources Command (USAHRC), Alexandria, VA in obtaining the appropriate COADOS orders in order to correct the applicant's records and facilitate payment of his AIP entitlements.

9.  143d Transportation Command, Orlando, FL, Orders 08-116-00003, dated
25 April 2008, amended Orders 06-129-00001 from the same orders issuing authority, dated 9 May 2006, by changing the period of involuntary mobilization from 545 days to 302 days [in order to complete 730 days of involuntary mobilization].

10.  An advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff (DCS), G-1, who opined that the applicant had been involuntarily mobilized beyond the 730 day maximum and determined there was an error on the involuntary mobilization orders issued to the applicant on 9 May 2006.  The advisory official further opined that the applicant should have been issued COTTAD orders upon completion of 730 days in involuntary mobilization status and he was authorized AIP during his period of voluntary COTTAD service.  He concluded the applicant should be paid all entitlements associated with AIP during his period of eligibility.  The applicant was provided a copy of the advisory opinion on 2 March 2010 and afforded an opportunity to concur with or dispute the findings and recommendations; he did not respond.

11.  Department of the Army Personnel Policy Guidance, in effect at the time of the applicant's mobilization, paragraph 10-3, provided that Reserve Component (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).

12.  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 DCS G-1 approval prior to USAHRC-Alexandria publishing orders.

13.  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.

14.  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.

15.  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 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 853 days during the periods 5 November 2004 through 6 January 2006 and 10 May 2006 through 8 July 2007.  Based on applicable law and regulation, in effect at the time of his mobilization, the applicant was only authorized to be involuntarily 
mobilized for a total of 730 days.  As a result, his second involuntary mobilization should have ended on 7 March 2007.  Additionally, his initial voluntary COTTAD orders should have commenced on 8 March 2007 and continued through 8 July 2007, for 123 days in COTTAD status.

3.  The Secretary of Defense directed the establishment of a new program to compensate 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 on 19 January 2007; the new policy was announced in ALARACT Message 137/2007 which was released on 15 June 2007.  The Army's policy for AIP eligibility changed from 24 months of cumulative involuntary service under Title 10, U.S. Code, section 12302 status to 24 months of consecutive service under Title 10, U.S. Code, section 12302 status.  The message also states that all AIP agreements entered prior to the effective date of this message will be honored; however, any new AIP agreements will be subject to the new policy.

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 5 November 2004 through 6 January 2006 and 10 May 2006 through 7 March 2007 and voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 8 March 2007 through 8 July 2007.

5.  Additionally, the applicant is entitled to prorated payment of $1,000.00 a month of AIP during his period of AIP eligibility.  As a result it would be appropriate that the Defense Finance and Accounting Service pay the applicant all AIP benefits entitled during the period 8 March 2007 through 8 July 2007.

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 5 November 2004 through 6 January 2006 and 10 May 2006 through 7 March 2007;

	b.  he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 8 March 2007 through 8 July 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)                                         AR20090018439



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ABCMR Record of Proceedings (cont)                                         AR20090018439



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