BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20100009315 


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 mobilization orders, Contingency Operation Temporary Tour of Active Duty (COTTAD) Orders,
DD Form 214 (Certificate of Release or Discharge from Active Duty), and payment of retroactive entitlements associated with Assignment Incentive Pay (AIP).

2.  The applicant states, in effect, 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 12301(d) for any days in excess of 730.  The applicant states that his AIP packet was completed in a timely manner, but his numerous attempts to be paid his AIP entitlements were unsuccessful.

3.  The applicant provides copies of

* Three DD Forms 214 for the period ending 6 October 2002, 9 September 2004, and 15 August 2007
* A DD Form 215 (Correction to DD Form 214) for the period ending
   15 August 2007, dated 10 October 2007
* A COTTAD application
* Three Unit Mobilization Orders and related amendments
* Four Individual Mobilization Orders and related amendments
* Deployment Orders
* Two Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statements (LES) for check dated 15 November 2006 and 6 December 2006
* A DA Form 2142 (Pay Inquiry), dated 19 December 2006
* A self-authored memorandum, subject: request for reassignment, dated 29 December 2006
* An undated DD Form 827 (Application for Arrears in Pay) for the period
4 November 2006 to 18 March 2007

CONSIDERATION OF EVIDENCE:

1.  The applicant is a member of the South Dakota Army National Guard (SDARNG).  He was assigned to the 1085th Medical Company (Air Ambulance (AA)) during the periods of mobilization which are the subject of this application.

2.  Headquarters, Fifth U.S. Army, Fort Sam Houston, TX, Permanent Orders 025-22, dated 25 January 2002, mobilized the 1085th Medical Company (AA) and involuntarily ordered unit personnel to active duty in support of Operation Joint Forge under the provisions of Title 10, U.S. Code, section 12302, effective 21 February 2002, for a period not to exceed 270 days.

3.  SDARNG, Rapid City, SD, Orders 033-022, dated 2 February 2002, ordered the applicant to active duty under the involuntary provisions of Title 10, U.S. Code, section 12304 in support of OJF for the period 21 February 2002 through 19 November 2002 for a total of 270 days.

4.  The applicant's DD Form 214 for the period ending 6 October 2002 shows he was involuntarily ordered to active duty under the provisions of Title 10, U.S. Code, section 12304 in support of OJF and he served for the period 21 February 2002 through 6 October 2002 for a total of 228 days.  This DD Form 214 also shows the applicant served in Bosnia for the period 5 March 2002 through 10 September 2002 for a total of 190 days overseas.

5.  State of South Dakota, Department of Military and Veterans Affairs, Office of the Adjutant General, Rapid City, Orders 281-033, dated 8 October 2003, ordered the applicant to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Enduring Freedom (OEF), effective 10 October 2003 for a period not to exceed 365 days.

6.  The applicant's DD Form 214 for the period ending 9 September 2004 shows he was involuntarily ordered to active duty under the provisions of Title 10, U.S. Code, section 12302 in support of OEF and he served for the period 10 October 

2003 through 9 September 2004 for a total of 336 days.  This DD Form 214 also shows the applicant served in Kosovo for the period 6 February 2004 through 21 August 2004 for a total of 198 days overseas.

7.  SDARNG, Orders 273-001, dated 30 September 2005, ordered the 1085th Medical Company (AA) and its members to active duty in Support of OEF under the involuntary provisions of Title 10, U.S. Code, section 12302, effective
30 September 2005 for a period of up to 521 days.

8.  State of South Dakota, Department of Military and Veterans Affairs, Office of the Adjutant General, Orders 066-082, dated 7 March 2007, [issued to replace of Orders 273-070, dated 30 September 2005, upon revocation] 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), effective 30 September 2005, for a period not to exceed 521 days.  This period of active duty was amended four times culminating with the issuance of Orders 016-036, dated 16 January 2008, which modified the period to "not to exceed 730 days."

9.  U.S. Army Human Resources Command, Alexandria, VA (USAHRC-Alexandria), Orders A-10-626707, dated 20 October 2006, ordered the applicant to active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d) in COTTAD support of OIF, effective 29 October 2006, for a period not to exceed 141 days.  These orders were amended by Orders A-10-626707001, dated 4 April 2007, to show the period as 4 months and 18 days including accumulated leave and to show the purpose as Contingency Operation for Active Duty Operational Support 
(CO-ADOS).

10.  A DA Form 4187 (Personnel Action), dated 23 October 2006, shows the applicant volunteered to serve beyond his 24-month mobilization and remain on active duty under the provisions of Title 10, U.S. Code, section 12301(d) with the understanding he would be entitled to AIP at the rate of $1,000.00 per month for each full month he spent in theater commencing with the completion of his 22nd cumulative month of mobilization under the involuntary provisions of Title 10, U.S. Code, section 12302 on or about 29 October 2006.

11.  State of South Dakota, Department of Military and Veterans Affairs, Office of the Adjutant General, Orders 076-001, dated 17 March 2007, ordered the applicant to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of OIF, effective 19 March 2007, for a period not to exceed 195 days.  These orders were amended by Orders 201-008, dated
20 July 2007, to show the period as 19 March 2007 through 15 August 2007.

12.  On 19 December 2006, the applicant submitted a DA Form 2142 inquiring why he was only paid AIP for the period 29 August 2006 through 3 November 2006.  This fact is corroborated by his LES's covering this time period.

13.  On 29 December 2006, the applicant submitted a request for immediate release from his assignment to the 34th Infantry Division due to irregularities with his extension contract.  He attested his decision to extend beyond his original deployment was based on incentive pay heralded by an in-theater recruiter, but he had since been informed he was not eligible for AIP.

14.  On 19 January 2007, the Secretary of Defense signed a memorandum addressed to the Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, and the Under Secretaries of Defense.  This memorandum shows, in pertinent part, that the Secretary of Defense stated that the planning objective for involuntary mobilization of National Guard and Reserve units will remain a one year mobilized to five years demobilized ratio.  He continued that today's global demands will require a number of selected National Guard and Reserve units to be remobilized sooner than this standard.  This memorandum also shows that he directed the establishment of a new program to compensate or incentivize individuals in both the active and Reserve components (RC) who are required to mobilize or deploy early or often, or to extend beyond the established ratio policy goals.

15.  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 also states that all AIP agreements entered prior to the effective date of this message will be honored.

16.  The applicant's DD Form 214 for the period ending 15 August 2007 shows he was involuntarily ordered to active duty under the provisions of Title 10, U.S. Code, section 12302 in support of OIF and served for the period 30 September 2005 through 28 October 2006 in this status for a total of 394 days.  He also served under the voluntary provisions of Title 10, U.S. Code, section 12301(d) for the period 29 October 2006 through 18 March 2007 for a total of 141 days.  Finally, he served, once again, under the involuntary provisions of Title 10, U.S. Code, section 12302 for the period of 19 March 2007 through 15 August 2007 for a total of 150 days.  This DD Form 214 also shows the applicant served in Iraq for the period 3 November 2005 through 10 July 2007 for a total of 615 days boots on ground (BOG).

17.  The applicant's DD Forms 214 shows he was involuntarily mobilized in support of OEF and OIF for a total of 880 days during the periods:

* 10 October 2003 through 9 September 2004 for a total of 336 days
* 30 September 2005 through 28 October 2006 for a total of 394 days
* 19 March 2007 through 15 August 2007 for a total of 150 days

18.  The applicant completed 730 cumulative days of involuntary mobilization in support of OEF and OIF under the provisions of Title 10, U.S. Code, section 12302 on 28 October 2006.

19.  The applicant's DD Forms 214 shows he was voluntarily mobilized in support of OEF and OIF for a total of 141 days during the period 29 October 2006 through 18 March 2007.

20.  The applicant provides a DD Form 827 which shows he requested payment for arrears in AIP payment during the period 4 November 2006 to 18 March 2007.

21.  On 18 May 2010, an advisory opinion was obtained from the Chief, Personnel Policy and Readiness Division of the National Guard Bureau (NGB).  The advisory official recommended that the applicant's application be approved.

22.  The advisory official confirmed the applicant mobilized with his original unit, the 1085th Medical Company (AA), from 30 September 2005 until 28 October 2006, at which point the 1085th demobilized and returned to home station.  The applicant, however, volunteered to remain in theater on COTTAD orders with the 134th Base Support Battalion (BSB).  He remained in voluntary status with the 134th BSB from 29 October 2006 until 17 [actually 18] March 2007, at which time the entire unit was involuntarily extended in country.

23.  The advisory official opined the applicant was entitled to Involuntary AIP for the period 30 September 2006 through 28 October 2006 for a total of 29 days; after which he should have transitioned to Voluntary AIP payments for the remainder of his deployment from 29 October 2006 through 18 March 2007 for a total of 141 days.  He stated after 18 March 2007 the applicant's AIP payments were correct.

24.  On 20 May 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 respond.

25.  Department of the Army Personnel Policy Guidance, paragraph 8-3 (Military Pay and Allowances), 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 area of responsibility (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.

26.  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 (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).

27.  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 Deputy Chief of Staff (DCS) G-1 approval prior to USAHRC-Alexandria publishing orders.

28.  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 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.

29.  The term, Contingency Operation for Active Duty Operational Support
(CO-ADOS), 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.

30.  The Secretary of Defense directed the services to establish programs to compensate and or incentivize individuals in both the active and RC 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 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 the applicant was involuntarily mobilized in support of OEF and OIF for a total of 880 days during the following periods:

* 10 October 2003 through 9 September 2004 for a total of 336 days
* 30 September 2005 through 28 October 2006 for a total of 394 days
* 19 March 2007 through 15 August 2007 for a total of 150 days

3.  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.  During his second mobilization, he completed 365 days of continuous involuntary mobilization on 29 September 2006.  The advisory official opined this entitled him to receive Involuntary AIP for the remainder of that mobilization, from 30 September 2006 through 28 October 2006, at the non-prorated rate of $1,000.00 per month for a period of 2 months.

4.  Contrary to the advisory opinion, Involuntary AIP is based upon extension beyond 365 days of BOG in theater.  Although the applicant mobilized on 30 September 2005, he did not deploy to Iraq until 3 November 2005 and he did not complete 365 days BOG until 2 November 2006, at which time he had begun a period of voluntary mobilization.  Therefore, he was not entitled to Involuntary AIP for the period 30 September 2006 through 28 October 2006.

5.  The applicant completed 730 cumulative days of involuntary mobilization in support of OEF and OIF under the provisions of Title 10, U.S. Code, section 12302 on 28 October 2006.  Accordingly, his voluntary COTTAD orders in support of OEF and OIF commenced on 29 October 2006 and continued through 15 August 2007.  He continued to serve in Iraq for the period 29 October 2006 through 18 March 2007.  Therefore, he was entitled to receive Voluntary AIP for the period 29 October 2006 through 18 March 2007 at the prorated rate of $1,000.00 per month and his record should be corrected to show this entitlement.

6.  The applicant's unit was involuntarily extended in theater for the period 19 March 2007 through 10 July 2007.  Accordingly, he was properly paid Involuntary AIP for this period of time.  Therefore, no corrective action is necessary for this period of time.

7.  Based on the foregoing, it would be appropriate to amend the applicant's military pay records to show he was involuntarily mobilized under the provisions 

of Title 10, U.S. Code, section 12302 during the period 10 October 2003 through 9 September 2004, 30 September 2005 through 28 October 2006, and 19 March 2007 through 15 August 2007; and voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 29 October 2006 through 18 March 2007.

8.  Additionally, the applicant is entitled to prorated payment of AIP during the period that he was voluntarily serving in Iraq 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 (DFAS) pay the applicant all AIP benefits entitled during the period 29 October 2006 through 18 March 2007 at the rate of $1,000.00 per month.  For partial months, this rate is to be prorated accordingly.

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 involuntarily mobilized under the provisions of Title 10, U.S. Code, section 12302 during the period 10 October 2003 through
9 September 2004, 30 September 2005 through 28 October 2006, and 19 March 2007 through 15 August 2007;

	b.  showing he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 29 October 2006 through 18 March 2007; and

	c.  showing he is entitled to be paid all benefits associated with Voluntary Assignment Incentive Pay from 29 October 2006 through 18 March 2007, while he was voluntarily mobilized under Title 10, U.S. Code, section 12301(d), at the 

rate of $1,000.00 per month.  For partial months, this rate is to be prorated accordingly.



      __________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)                                         AR20100009315



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS