IN THE CASE OF:	

		BOARD DATE:	  1 June 2010

		DOCKET NUMBER:  AR20090020214 


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 retroactive payment of $1,000.00 for the Involuntary Assignment Incentive Pay (AIP) program for his extended deployment in Iraq.

2.  The applicant states that after several attempts at claiming his $1,000.00 Involuntary AIP entitlement, he has been denied.  He has filed complaints with the state inspector general as well as with his representative in Congress.  He contends that the 2nd Battalion, 147th Field Artillery was approved for Involuntary AIP for service in Iraq during the period December 2003 through February 2005.  He claims that other service members who are still serving in the South Dakota Army National Guard (SDARNG) or on active duty have been paid their Involuntary Extension AIP.

3.  The applicant provides the following:

* A DD Form 827 (Application for Arrears in Pay)
* A copy of Permanent Orders 328-36, dated 24 November 2003 (unit mobilization orders)
* A copy of Orders 351-191, dated 17 December 2003 (individual mobilization orders)
* A copy of Orders 041-0686, dated 10 February 2005 (released from active duty (REFRAD) orders
* A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)


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 as a member of the SDARNG, he was assigned to B Battery, 2d Battalion, 147th Field Artillery Regiment.

3.  Department of the Army, Headquarters, Fifth United States Army, 
Orders 328-36, dated 24 November 2003, ordered the applicant's unit and its members to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 and Department of Defense Directive (DoDD) 1235.10 in support of Operation Iraqi Freedom (OIF) on 18 December 2003 for a period not to exceed 535 days.

4.  State of South Dakota Department of Military and Veterans Affairs, Office of the Adjutant General, dated 17 December 2003, ordered the applicant to active duty as a member of a reserve component unit for a period not to exceed 535 days with a reporting date of 18 December 2003.

5.  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 served for the period 18 December 2003 through 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, a total of 375 days.  He was released from active duty (REFRAD) on 7 March 2005.

6.  The applicant's record contains a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) that shows he was discharged from the SDARNG with an honorable characterization of service, effective 8 July 2005.

7.  In the processing of this case, on 13 January 2010, an advisory opinion was obtained from the Chief, Personnel Policy and Readiness Division, NGB.  The advisory official recommended that the application be approved.

8.  The advisory official opined that based on the Department of the Army Personnel Policy Guidance, Soldiers/units who are involuntarily extended by the Secretary of Defense for extension beyond 12 consecutive months boots on ground (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.

9.  The advisory official further opined that the applicant did serve involuntarily 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.  He recommends one month of AIP for the applicant. 

10. 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 extended involuntarily 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 from theater.  The BOG clock does not start over.

	f.  Qualifying Soldier’s chain-of-command will submit a DA Form 4187 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.

	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 that the involuntary extension of his unit's deployment in Iraq required him to serve beyond the 365 day 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.  Evidence shows that the applicant served in Kuwait and Iraq during the period 29 January 2004 through 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 in this case 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 from 29 January 2004 to 28 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 from 29 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 that the Defense Finance and Accounting Service (DFAS) pay the applicant all Involuntary AIP benefits to which he is entitled during the period from 29 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 showing that:

	a.  the applicant was deployed under the provisions of Title 10, U.S. Code, section 12302 during the period from 29 January 2004 to 6 February 2005;

	b.  the applicant's deployment was involuntarily extended under the provisions of Title 10, U.S. Code, section 12302 during the period from 29 January 2005 to 6 February 2005; and

	c.  the applicant is entitled to be paid all benefits associated with Involuntary Assignment Incentive Pay during the period that 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)                                         AR20090020214



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ABCMR Record of Proceedings (cont)                                         AR20090020214



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