BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130012177 


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 Special Duty Assignment Pay (SDAP) for the period July 2007 to January 2010.

2.  The applicant states the 7th Special Forces Group (Airborne) (SFG(A)) issued orders assigning him to the Combined Joint Special Operations Task Force (CJSOTF) - Afghanistan.  He was ultimately assigned to Special Operations Command, Central Command (SOCCENT), with duty in Afghanistan.

   a.  He was ordered to active duty on 22 July 2007 and paid SDAP for the period 13 August 2007 through 30 December 2008.

   b.  He was in theater for 28 months and the CJSOTF command shifted between the 7th SFG(A) and 3rd SFG(A) five times during his assignment.

   c.  He has been trying to obtain payment for the period of his deployment.  He was instructed to utilize the orders issued by the 7th SFG(A).  However, the orders were rescinded because they were issued by the wrong approving authority.  He states the problem he is encountering is that SOCCENT should have issued his orders.

3.  The applicant provides copies of his active duty and SDAP orders, and a letter from the Defense Finance and Accounting Service (DFAS).


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.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty on 28 May 1980, was honorably retired from active duty on 31 August 1998, and transferred to the U.S. Army Reserve (USAR) Control Group (Retired).  It shows he was promoted to sergeant major (SGM)/pay grade E-9 on 1 February 1995 and he held military occupational specialty (MOS) 18Z5O (Special Forces Senior Sergeant).

3.  U.S. Army Human Resources Command (HRC), St. Louis, MO, Orders
M-06-701096, dated 11 June 2007 (as amended by Orders M-06-701096A01, dated 11 January 2008; Orders M-06-701096A02, dated 15 January 2008; and Orders M-06-701096A03, dated 19 December 2008), ordered the applicant to active duty in a retired status, on 22 July 2007, in support of Operation Enduring Freedom (OEF) for a period not to exceed 911 days.  The orders also show his rank as SGM and MOS as 18Z5O.  The orders further show, in pertinent part, in the Additional Instructions:  "Upon completion, report to Control and Reporting Center at Fort Benning, GA, with follow-on assignment to SOCCENT, Tampa, FL, to serve as Plans SGM of CJSOTF - Afghanistan in support of OEF."

4.  A DD Form 214 shows the applicant entered active duty this period on 22 July 2007, was honorably released from active duty on 17 January 2010, and transferred to the USAR Control Group (Retired).

   a.  He had completed 2 years, 5 months, and 26 days of net active service this period that included 2 years, 3 months, and 21 days of foreign service.

   b.  Item 18 (Remarks) shows, in pertinent part, that he served in Afghanistan from 15 August 2007 through 5 December 2009.

5.  In support of his application the applicant provides copies of the following documents:

   a.  Headquarters, 7th SFG(A), Fort Bragg, NC, Orders 359-01, dated 
24 December 2008, that awarded the applicant SDAP, Level 5 (SDAP-5,  $375) effective 15 August 2007.  The orders also show his rank as SGM and primary MOS as 18Z.  The orders further show:

* Additional Instructions:  "These orders will remain in effect without break in service unless sooner terminated."
* Authority:  Headquarters, Personnel Command, message 301500Z October 1996

   b.  DFAS, Indianapolis, IN, letter, dated 21 August 2012, that shows DFAS responded to an inquiry from the Honorable Doug L------, Representative in Congress, on behalf of the applicant.  It shows, in pertinent part, that DFAS records show the applicant was paid SDAP for the period 13 August 2007 through 30 December 2008, in the amount of $6,405.30.  The DFAS official also offered the following:

* Order 359-01 authorized SDAP from 15 August 2007 to continue until rescinded or a break in service occurred
* the orders were rejected by Fort McCoy because they were issued by the wrong approving authority
* the previous amount paid to the applicant was not collected and there was no record of an indebtedness resulting from the payment
* valid orders would have to be provided to establish the applicant's right to entitlement to SDAP

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, Pentagon, Washington, DC.
	
   a.  The advisory official opined that the applicant qualified for SDAP, Level 5, for the entire period he was on active duty.

   b.  The applicant was paid SDAP, Level 5, for the period 13 August 2007 through 30 December 2008.  However, the payment was based on an order that was improperly issued by the 7th SFG(A).

   c.  The correct order issuing authority (HRC) failed to issue the proper order authorizing the applicant SDAP during the period 31 December 2008 through
17 January 2010.
   d.  The applicant was properly assigned to an authorized career management field (CMF) 18 position and he performed the duties of the designated SDAP assignment.  Thus, he fulfilled the Army's requirements.
   
   e.  The advisory official concludes the applicant's records should be corrected to authorize him SDAP, Level 5, for the entire period he was on active duty.

7.  On 28 August 2013, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity to submit comments.  To date, the applicant has not provided a response.

8.  Army Regulation 614-200 (Enlisted Assignment and Utilization Management) provides guidance on the selection of enlisted Soldiers for assignment, utilization, reclassification, detail, transfer, and training.  Chapter 3 (Enlisted Assignment System), section IV (SDAP), shows in:

   a.  paragraph 3-21 (Scope) that SDAP is a monetary incentive paid to enlisted Soldiers who qualify for and serve in designated special duty (SD) assignments that have extremely demanding duties requiring extraordinary effort for satisfactory performance or an unusual degree of responsibility.  The Secretary of the Army determines which SDs are eligible to receive SDAP and may initiate, terminate, increase, or decrease SDAP for any skill.  It shows that orders must be issued to award, change, terminate, and reinstate SDAP and that the Commander, HRC, is the order issuing authority; and

   b.  paragraph 3-23 (Eligibility criteria for SDAP) that enlisted Soldiers are eligible to receive SDAP when they are qualified in one of the authorized SD assignments and shows that CMF 18, Army Special Operations Forces Soldiers are authorized SDAP-5.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show entitlement to SDAP for the period he was ordered to active duty.

2.  Records show the applicant was ordered to active duty in MOS 18Z on
22 July 2007, he served in a CMF 18 position, performed duties of a designated SDAP assignment, and he was released from active duty on 17 January 2010. Thus, he qualified for SDAP-5 for the entire period he was on active duty.

3.  The evidence of record shows the applicant was issued orders for SDAP-5 and he was paid SDAP-5 for the period 13 August 2007 through 30 December 2008.  However, the evidence of record also shows that the orders were not issued by the proper order-issuing authority.  As a result, the applicant's SDAP was terminated and the applicant is subject to recoupment of the SDAP that he was paid based on the improperly-issued order.

4.  Therefore, it would be appropriate to correct the applicant's records by directing the improperly-issued SDAP order be rescinded and issuing an appropriate order authorizing the applicant SDAP, Level 5, for the period
22 July 2007 through 17 January 2010.

BOARD VOTE:

___X____  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  rescinding Headquarters, 7th Special Forces Group (Airborne), Fort Bragg, NC, Orders 359-001, dated 24 December 2008; and

   b.  showing he was awarded Special Duty Assignment Pay, Level 5, for the period 22 July 2007 through 17 January 2010 by the proper authority.
   
2.  As a result of this correction, the Defense Finance and Accounting Service shall be notified of the Board's determination and pay the applicant all Special Duty Assignment Pay due as a result of this correction.




      _______ _  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)                                         AR20130012177



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ABCMR Record of Proceedings (cont)                                         AR20130012177



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