IN THE CASE OF: BOARD DATE: 30 July 2009 DOCKET NUMBER: AR20090002432 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 his record in the form of amendment of his involuntary mobilization orders, issuance of Contingency Operation Temporary Tour of Active Duty (COTTAD) Orders, 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 [involuntary mobilization] 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 continues that the potential income to be gained from AIP weighed heavily in his decision to volunteer for mobilization. The applicant concludes that in spite of his attempts to have this oversight corrected, he has yet to receive his AIP entitlements. 3. The applicant provides copies of two orders to active duty, two DD Forms 214 (Certificate of Release or Discharge from Active Duty), and a DD Form 215 (Correction to DD Form 214) as documentary evidence in support of this application. The applicant states that he also provided a copy of a "DA Form 4187 (Personnel Action) AIP Contract," but it was not among the documents included with his request. 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 record shows that he was a member of the Alabama Army National Guard. During his tenure, he held military occupational specialty (MOS) 19K (M1 Armor Crewman). 3. Alabama State Military Department, Personnel Service Branch, Montgomery, Alabama, Orders 246-154, dated 3 September 2002, show that the applicant was ordered to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operations Noble Eagle and Enduring Freedom on 3 September 2002, for a period not to exceed 365 days unless extended. 4. The applicant's DD Form 214 for the period ending 2 July 2004 shows he was ordered to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Noble Eagle and served for the period 3 September 2002 through 2 July 2004, a total of 669 days. 5. State Military Department, Join Force Headquarters, Alabama National Guard, Montgomery, Alabama, Orders 290-161, dated 16 October 2004, show that the applicant was ordered to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Enduring Freedom on 14 October 2004, for a period not to exceed 545 days. 6. The applicant's DD Form 214 for the period ending 26 May 2005 shows he was ordered to active duty under the provisions of Title 10, U.S. Code, section 12304 in support of Operation Enduring Freedom and served for the period 14 October 2004 through 26 May 2005, a total of 225 days. The DD Form 214 also shows the applicant served in Afghanistan for the period 23 November 2004 through 13 May 2005, a total of 172 days. 7. The record shows that the applicant was mobilized during the periods 3 September 2002 through 2 July 2004 and 14 October 2004 through 26 May 2005, for a total of 894 days. The applicant completed 730 cumulative days of mobilization on 13 December 2004. 8. DD Form 215, dated 6 September 2007, corrected the applicant's DD Form 214 for the period ending 26 May 2005 by amending Item 18 to show he was ordered to active duty in support of Operation Enduring Freedom in accordance with the involuntary provisions of Title 10, U.S. Code, section 12302. 9. An advisory opinion was rendered by the Chief, Personnel Policy and Readiness Division of the Departments of the Army and the Air Force, National Guard Bureau, Arlington, Virginia. The Chief, Personnel Policy and Readiness Division, acknowledged that an administrative error was made during the applicant's COTTAD processing and recommended that the application be approved. 10. The Chief, Personnel Policy and Readiness Division, noted that under Secretary of Defense guidance and the President of the United States' involuntary mobilization authorization, Reserve Component Soldiers could only be involuntarily mobilized for 730 days in a section 12302 status prior to 19 January 2007. He acknowledged the applicant had been mobilized in section 12302 status for a total of 894 days. The Chief, Personnel Policy and Readiness Division, opined that the applicant's second mobilization should have been under the authority of Title 10, U.S. Code, section 12302 for the period 14 October 2004 through 13 December 2004, a total of 61 days, in order to complete his 730 days of involuntary mobilization. The Chief, Personnel Policy and Readiness Division, continued that the applicant's voluntary Title 10, U.S. Code, section 12301(d) COTTAD order should have commenced on 14 December 2004 and continued through 26 May 2005 for a total of 164 days of AIP. The applicant did not provide a response to the advisory opinion. 11. Department of the Army Personnel Policy Guidance, in effect at the time of the applicant's mobilization, paragraph 10-3, provided that Reserve Component Soldiers who voluntarily requested to serve beyond their 24-month mobilization authorized under the provisions of 10 U.S.C. could request an extension under the policy guidance for COTTAD. Soldiers transitioning without a break in service would not go through REFRAD process until the end of their COTTAD. Updated COTTAD procedures went into effect on 5 January 2006 to support the voluntary transition of Reserve Component 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). 12. 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 DCS G-1 approval prior to Human Resources Command - Alexandria publishing orders. 13. 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 Boots On Ground (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 10 U.S.C. 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. 14. The term, Contingency Operation for Active Duty Operational Support (COADOS), is the Army's new terminology for what used to be known as a Contingency Operation Temporary Tour of Active Duty (COTTAD). The terms are synonymous and in both cases, the tour of duty is considered to be on a voluntary basis. 15. The Secretary of Defense directed the services to establish programs to compensate and or incentivize individuals in both the active and Reserve components 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 (Military Pay and Allowances) 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 found to be with merit. 2. Evidence shows that the applicant was involuntarily mobilized during the periods 3 September 2002 through 2 July 2004 and 14 October 2004 through 26 May 2005, for a total of 894 days. 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. As a result, his second involuntary mobilization should have ended on 13 December 2004. Additionally, his voluntary COTTAD orders should have commenced on 14 December 2004 and continued through 26 May 2005. 3. Based on the foregoing, it would be appropriate in this case to amend the applicant's records to show that he was involuntarily mobilized under the provisions of Title 10, U.S. Code, section 12302 during the periods 3 September 2002 through 2 July 2004 and 14 October 2004 through 13 December 2004 and voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 14 December 2004 through 26 May 2005. 4. Additionally, the applicant is entitled to payment of AIP during the period that he was voluntarily serving 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 pay the applicant all AIP benefits to which he is entitled for the period 14 December 2004 through 26 May 2005. 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 showing that: a. the applicant was involuntarily mobilized under the provisions of Title 10, U.S. Code, section 12302 during the period periods 3 September 2002 through 2 July 2004 and 14 October 2004 through 13 December 2004; b. he was voluntarily mobilized under the provisions of Title 10, U.S. Code, section 12301(d) during the period 14 December 2004 through 26 May 2005, the date of his release from active duty in support of Operation Enduring Freedom; and c. he be paid all benefits associated with Assignment Incentive Pay during the period that he was voluntarily mobilized under Title 10, U.S. Code, section 12301(d). _________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) AR20090002432 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090002432 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1