IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100024664 


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, correction of her military pay record maintained by the Defense Finance and Accounting Service (DFAS) to show she is entitled to retroactive payment of entitlements associated with Voluntary Assignment Incentive Pay (AIP) for the portion of her deployment to Iraq in excess of 12 months.

2.  She states, in effect, her records should be amended to show that following a period of involuntary mobilization under the provisions of Title 10, U.S. Code, section 12302; she voluntarily extended her tour in a Contingency Operation for Active Duty Operational Support (CO-ADOS) status under the provisions of Title 10, U.S. Code, section 12301(d) while serving in the deployed theater.  She attests that as a result of her extension, she served beyond 12 months boots on the ground (BOG) in Iraq.  As a result, she contends she is entitled to AIP at the prorated rate of $500.00 per month for the time she served in theater beyond 12 months.  She concludes that her AIP packet was completed in a timely manner, but her numerous attempts to be paid AIP entitlements were unsuccessful.

3.  The applicant provides:

* A DD Form 214
* Individual mobilization orders and a related amendment
* Deployment orders
* CO-ADOS orders
* Release from active duty (REFRAD) orders

CONSIDERATION OF EVIDENCE:

1.  The applicant is a member of the Washington Army National Guard (WAARNG).  She was assigned to the 181st Combat Support Battalion during the periods of mobilization which are the subject of this application.

2.  Headquarters, Military Department, State of Washington, Office of the Adjutant General, Camp Murray, Tacoma, WA, Orders 155-102, dated 2 June 2008 ordered her to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Iraqi Freedom (OIF) with a report date of 18 August 2008 for a period not to exceed 398 days.

3.  U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort McCoy, WI, Order 296-401, dated 22 October 2008, shows she was deployed as a temporary change of station to the U.S. Army Central Command area of responsibility in support of OIF with a proceed date of on or about 24 October 2008.

4.  U.S. Army Human Resources Command (HRC), St. Louis, MO, Orders
A-07-918517, dated 2 July 2009, ordered the applicant to active duty under the voluntary provisions of Title 10, U.S. Code, section 12301(d) in CO-ADOS support of OIF, effective 22 July 2009, for a period of 318 days including accumulated leave.

5.  Headquarters, Military Department, State of Washington, Office of the Adjutant General, Camp Murray, Tacoma, WA, Orders 251-076, dated 8 September 2009, amended Orders 155-102, dated 2 June 2008, to show the following changes:

* Period of active duty:  Not to exceed 338 days
* End date:  21 July 2009
* Extended on CO-ADOS:  HRC Orders Number A-07-918517, dated 2 July 2009

6.  U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort McCoy, WI, Order 296-401, dated 22 October 2008, shows she was REFRAD effective 9 April 2010.

7.  The applicant's DD Form 214 for the period ending 9 April 2010 shows she was involuntarily ordered to active duty under the provisions of Title 10, U.S. Code, section 12302 in support of OIF and she served in that status for the period 18 August 2008 through 21 July 2009 which is a total of 338 days.  This form also shows she served in a CO-ADOS status under the voluntary provisions of Title 10, U.S. Code, section 12301 (D) in support of OIF and she served in that status for the period 22 July 2009 through 9 April 2010 which is a total of 262 days.  She served in Iraq from 25 October 2008 through 5 March 2010 which is a total of 497 days overseas BOG.

8.  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.

9.  On 15 November 2010, an advisory opinion was obtained from the Chief, Personnel Policy Division of the National Guard Bureau (NGB).  The advisory official recommended that the applicant's application be denied.

10.  After a review of the applicant's case, the advisory official opined the applicant's records were correct.  The advisory official noted the applicant began her deployment in August 2008 and the AIP program ended on 31 December 2008 and she was not reauthorized.  The official concluded that pursuant to Secretary of Defense Guidance and policy published by Headquarters, Department of the Army, the applicant was not entitled to AIP.  On 9 December 2010, the applicant was provided a copy of the advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal.

11.  On 17 December 2010, she submitted a rebuttal to the advisory opinion, wherein, she stated there were numerous inaccuracies within the opinion from NGB.  As a result, she feared her request was mistaken with someone else's.  She also stated the AIP program was extended according to the Department of the Army's Personnel Planning Guidance (PPG) in effect during the time of her service in Iraq.  She processed her voluntary extension request in a timely manner and believes she is entitled to AIP.

12.  DA PPG, in effect at the time of the applicant's mobilization, 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 CO-ADOS.  Soldiers transitioning without a break in service would not go through release from active duty (REFRAD) processing until the end of their CO-ADOS.  Updated CO-ADOS 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 CO-ADOS orders under the provisions of Title 10, U.S. Code, section 12301(d).

13.  Department of the Army Personnel Policy Guidance, in effect at the time of the applicant's mobilization, stated that CO-ADOS 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 CO-ADOS orders totaling 1095 days.  Requests beyond authorized durations required Deputy Chief of Staff (DCS) G-1 approval prior to USAHRC publishing orders.

14.  Department of the Army Personnel Policy Guidance, in effect at the time of the applicant's mobilization, stated that the CO-ADOS 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 CO-ADOS 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 CO-ADOS to complete 12 months BOG with their deployed unit. 
CO-ADOS 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 CO-ADOS 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 CO-ADOS 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 CO-ADOS 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 
CO-ADOS.

15.  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, DA PPG, chapter 8, 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.

16.  Chapter 8 (Compensation and Entitlements), paragraph 8-2d (AIP) of DA PPG, dated 1 July 2009, provided that "Soldiers entitled to basic pay may be paid AIP for Voluntary and Involuntary extensions beyond 12 months BOG in Iraq and Afghanistan and certain theater units.  The current expiration of the program is 30 September 2011.  No AIP agreements shall be entered into after 31 December 2010, subject to Congressional reauthorization of section 307A of Title 37, U.S. Code."  Voluntary AIP was paid at the prorated rate of $500.00 per month.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her military pay record should be corrected to show she is entitled to retroactive payment of AIP for a portion of her deployment to Iraq in excess of 12 months was carefully considered and determined to have merit.

2.  The available evidence shows she was involuntarily mobilized in support of OIF on 18 August 2008.

3.  The evidence also shows she requested and was granted a voluntary extension of her mobilization in a CO-ADOS status which began on 22 July 2009 and resulted in her serving continuously in Iraq from 25 October 2008 through 5 March 2010, a period of 1 year, 4 months, and 9 days.

4.  The advisory opinion recommended denial of her request based upon the opinion that she was not entitled to AIP due to the program expiring on 
31 December 2008.

5.  Contrary to the advisory opinion, the AIP program has remained in effect and was extended to 30 September 2011 in the DA PPG published on 1 July 2009.  Therefore, she is entitled to AIP for the time she spent in Iraq in excess of 12 months at the prorated rate of $500.00 per month.

6.  The applicant completed 365 cumulative days of BOG in support of OIF on 24 October 2009.  She continued to serve in Iraq for the period 25 October 2009 through 5 March 2010.  Therefore, she was entitled to receive Voluntary AIP for the period 25 October 2009 through 5 March 2010 at the prorated rate of $500.00 per month and her record should be corrected to show this entitlement.

7.  Based on the foregoing, it would be appropriate to amend the applicant's military pay records to show she was involuntarily mobilized under the provisions of Title 10, U.S. Code, section 12302 during the period 18 August 2008 through 21 July 2009; and voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 22 July 2009 through 9 April 2010.

8.  Additionally, the applicant is entitled to prorated payment of AIP during the period that she was voluntarily serving in Iraq under the provisions of Title 10, U.S. Code, section 12301(d) in excess of 365 days.  As a result it would be appropriate that DFAS pay the applicant all AIP benefits entitled during the period 25 October 2009 through 5 March 2010 at the rate of $500.00 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 18 August 2008 through 21 July 2009;

	b.  showing she was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 22 July 2009 through 9 April 2010; and

	c.  showing she is entitled to be paid all benefits associated with Voluntary AIP from 25 October 2009 through 5 March 2010, while she was voluntarily mobilized under Title 10, U.S. Code, section 12301(d) and serving in Iraq, at the rate of $500.00 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)                                         AR20100024664



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ABCMR Record of Proceedings (cont)                                         AR20100024664



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