IN THE CASE OF:	  

		BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100007399 


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

2.  He states, in effect, 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-the-ground (BOG) requirement to be eligible for Involuntary AIP.  He further states members of his former unit were approved to receive $1,000.00 in Involuntary AIP and most of them have received payment.  He 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.  He states he has made numerous unsuccessful attempts to get paid his AIP entitlement.

3.  He provides copies of:

* Permanent Order 351-001 and Orders 351-173, both issued by the Office of the Adjutant General, SDARNG, Rapid City, SD, dated 17 December 2003
* 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
* DD Form 827 (Application for Arrears in Pay)

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.  His record shows he was a member of the SDARNG and he was assigned to Battery B, 2d Battalion, 147th Field Artillery Regiment during the period of his mobilization.

3.  Permanent Order 351-001, dated 17 December 2003, ordered his 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.  Orders 351-173, dated 17 December 2003, ordered him 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.  Orders 020-301, dated 20 January 2004, deployed his unit and its members to the U.S. 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.  His 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 from 18 December 2003 to 7 March 2005.
The DD Form 214 also shows he served in Kuwait and Iraq for the period 29 January 2004 through 6 February 2005, a total of 375 days.

7.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 5 June 2005 shows he was honorably discharged from the SDARNG.  Item 18 (Remarks) of his NGB Form 22 shows he served in Kuwait and Iraq from 29 January 2004 to 6 February 2005.

8.  He provides a DD Form 827 which shows he requested payment for arrears of AIP for 29 January 2004 to 6 February 2005.

9.  On 21 June 2010, an advisory opinion was obtained from the NGB, Chief, Personnel Policy and Readiness Division.  The advisory official recommended that his application be disapproved.

10.  The advisory official further opined that the applicant was not entitled to AIP because he began his deployment in December 2003 and the AIP Program was not introduced until August 2004 and that there were no provisions in the policy for grandfathering the entitlement.  The advisory official concluded that since his original deployment was for a period of 535 days, neither he nor his unit was extended in theater and he returned to home station within the confines of the original orders; therefore, he was not entitled to AIP.

11.  On 21 June 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. He did not respond.

12.  Department of the Army Personnel Policy Guidance, paragraph 8-3 (Military Pay and Allowances), in effect at the time, provides that Soldiers/units who are involuntarily extended by the Secretary of Defense for extension 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.  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 of BOG;

	b.  units are defined as those entities that support the brigade combat team 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 clock 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.

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 of 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 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.

4.  Notwithstanding the advisory opinion, Involuntary AIP is based upon extension beyond 365 days of BOG in theater.  Orders 020-301, dated 20 January 2004, deployed the applicant's unit and its members to the CENTCOM AOR in Iraq in support of OIF for a period of 356 days with possible 

extension not to exceed 540 days.  Evidence shows he remained in theater for a total of 375 days.  Therefore, he was entitled to Involuntary AIP for the period he was in theater in excess of 365 days.

5.  Based on the foregoing, it would be appropriate to amend his records to show 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 to 6 February 2005.

6.  Additionally, he 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 him all Involuntary AIP benefits to which he is entitled during the period 28 January 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 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 he 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 his deployment was involuntarily extended under the provisions of Title 10, U.S. Code, section 12302, during the period 28 January to 6 February 2005; and

	c.  paying him 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)                                         AR20100007399



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)