IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100029901 


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 payment of retroactive entitlements associated with Involuntary Assignment Incentive Pay (AIP) in the amount of $2,000.

2.  He states that he was denied AIP for a "boot on the ground (BOG)" violation between 2004 and 2005.  The 2nd Battalion, 147th Field Artillery was approved for AIP in the amount of $2,000 for service in Iraq from December 2003 to February 2005.  Other service members of the South Dakota Army National Guard (SDARNG) and active Army members have been paid their AIP.  However, he has been unsuccessful in obtaining his entitlement.  

3.  He provides:

* Active duty orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 7 March 2005
* All Army Activities (ALARACT) Message 137/2007
* DD Form 827 (Application for Arrears 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.  The applicant's military records show he enlisted in the SDARNG, in pay grade E1, on 16 March 1984.  

3.  Orders 351-163, dated 17 December 2003, ordered him to active duty under the 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.

4.  He was honorably released from active duty on 7 March 2005.

5.  Item 18 (Remarks) of his DD Form 214 shows he was ordered to active duty under the provisions of Title 10, U.S. Code, section 12302, in support of OIF.  Item 18 also shows he served in Kuwait from 29 January until he was assigned to Iraq on 22 April 2004.  He remained in Iraq until 5 February 2005 (a period of 373 days.

6.  He was discharged from the SDARNG in pay grade E-8 on 6 June 2005 and was transferred to the Retired Reserve.

7.  ALARACT Message 137/2007, dated 15 June 2007, Subject:  Clarification of Involuntary Extension AIP Program and Implementation Instructions for Army's Involuntary Extension AIP Program.  The message stated that individual Soldiers who had served greater than 12 months of BOG in Iraq, Afghanistan, or certain theater units, who had been involuntarily extended by the Secretary of Defense beyond 12 months would be authorized $1,000 ($200 per month extra hardship duty pay and $800 per month AIP) for each month or portion of a month longer than 12 months of BOG.

8.  He provides a DD Form 827, signed on 1 December 2010, which shows he requested arrears AIP from January 2004 to February 2005.

9.  In the processing of this case, an advisory opinion was provided by the Chief, Personnel Policy Division, National Guard Bureau, on 24 May 2011.  The advisory official reiterated the applicant's request.  The official stated that the applicant stated that he had not received AIP for his service in Iraq from January 2004 through February 2005.  The applicant submitted a DD Form 827 to the Defense Finance and Accounting Service (DFAS).  The applicant's DD Form 214 shows he was involuntarily mobilized pursuant to Title 10, U.S. Code, section 12302, from 29 January 2004 to 5 February 2005 in support of OIF.  He was deployed a total of 372 days.

10.  The advisory official also stated that Department of Defense Financial Management Regulation, Volume 7a, states that "on 20 January 2004, the Principal Deputy Under Secretary of Defense, Personnel and Readiness authorized AIP for members assigned or attached to specified units identified by the Combatant Commander as having been required to remain in Iraq beyond the normal 12-month rotation return date."  He further stated, in effect, that ALARACT Message 13/2007 authorized $1,000 for each month or portion of a month longer than 12 months BOG.  He recommended partial approval of the applicant's request with payment in the amount of $1,000.

11.  On 24 May 2011, the advisory opinion was forwarded to the applicant 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 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.

	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.  A 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.

	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 5 February 2005 for a total of 373 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.  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 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 29 January to 5 February 2005.

5.  Additionally, he is entitled to non-prorated payment of Involuntary AIP during the period that he was serving under his unit's involuntary extension.  Notwithstanding the advisory opinion's recommendation that he be paid $1,000 in AIP, it appears he is actually entitled to $2,000 in AIP.  As a result, it would be appropriate for the Defense Finance and Accounting Service to pay him all Involuntary AIP benefits to which he is entitled during the period 29 January 2004 to 5 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 28 January 2005;

	b.  showing his deployment was involuntarily extended under the provisions of Title 10, U.S. Code, section 12302, during the period 29 January to 5 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)                                         AR20100029901



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100029901



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1