BOARD DATE: 20 August 2009 DOCKET NUMBER: AR20090000194 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 unit's deployment orders and payment of retroactive entitlements associated with Involuntary Assignment Incentive Pay (AIP). 2. The applicant states, in effect, 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 day boots on ground (BOG) requirement in order to be eligible for receipt of Involuntary AIP. The applicant further states that members of his former unit were approved for receipt of $1,000 in AIP entitlements and most of them have received payment. The applicant resigned from the South Dakota Army National Guard (SDARNG) following redeployment and was not included when his former unit processed its batch request for AIP. The applicant concludes that his numerous attempts to be paid his AIP entitlements were unsuccessful. 3. The applicant provides copies of mobilization orders, deployment orders, a DD Form 214 (Certificate of Release or Discharge from Active Duty), and a DD Form 827 (Application for Arrears in Pay) as documentary evidence in support of this application. 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 SDARNG. The record also shows that the applicant was assigned to Headquarters and Head-quarters Service Battery, 2d Battalion, 147th Field Artillery Regiment, during the periods of mobilization which are the subject of this application. 3. Office of the Adjutant General, SDARNG, Rapid City, Orders 351-001, dated 17 December 2003, ordered the applicant's unit and its members to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 on 18 December 2003 for a period not to exceed 535 days. 4. State of South Dakota, Department of Military and Veterans Affairs, Office of the Adjutant General, Rapid City, Orders 351-226, dated 17 December 2003, ordered the applicant to active duty under the involuntary provisions of Title 10, U.S. Code, section 12302 in support of Operation Iraqi Freedom on 18 December 2003 for a period not to exceed 535 days. 5. Headquarters, United States Army Field Artillery Center and Fort Sill, Oklahoma, Orders 020-301, dated 20 January 2004, deployed the applicant's unit and its members to the Central Command's (CENTCOM) area of responsibi-lity (AOR) in Iraq in support of Operation Iraqi Freedom on 25 January 2004 for a period of 356 days with possible extension not to exceed 540 days. 6. The applicant's DD Form 214 for the period ending 22 March 2005 shows he was ordered to active duty under the provisions of Title 10, U.S. Code, section 12302 in support of Operation Iraqi Freedom and he served for the period from 18 December 2003 to 22 March 2005. The DD Form 214 also shows the applicant served in Kuwait and Iraq for the period from 29 January 2004 to 30 January 2005, a total of 368 days. 7. The applicant's NGB Form 22 (Departments of the Army and the Air Force, National Guard Bureau, Report of Separation and Record of Service) for the period ending 27 September 2005 shows he resigned from the SDARNG effective 27 September 2005 with an honorable characterization of service. Item 18 (Remarks) of this form shows the applicant served in Kuwait and Iraq for the period from 29 January 2004 to 30 January 2005. 8. The applicant provides a DD Form 827, dated 4 September 2008, that shows he requested payment for arrears in pay for AIP during the period from January 2004 to February 2005. 9. An advisory opinion was obtained from the Chief of the Personnel Policy and Readiness Division of the National Guard Bureau. The advisory official recommended that the applicant's application be approved. 10. The advisory official further opined that the applicant did serve involuntarily for a period greater than 365 days BOG in Iraq and did qualify for Involuntary AIP for the period he served greater than 365 days BOG. On 8 June 2009 the applicant was provided a copy of the advisory opinion for information and afforded an opportunity to submit comments or a rebuttal; however, he did not reply by the established suspense date. 11. Department of the Army Personnel Policy Guidance, paragraph 8-3 (Military Pay and Allowances) provides, in pertinent part, that Soldiers/units who are involuntarily extended by the Secretary of Defense for extension 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. In addition, Soldiers assigned to theater units not based in Iraq or Afghanistan who routinely conduct operations in Iraq or Afghani-stan 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 BOG. b. Units are defined as those entities that support the Brigade Combat Team (BCT) 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 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 is temporarily placed in an inactive status until the Soldier returns to theater. The BOG clock resumes when the Soldier returns from theater. The BOG clock does not start over. f. Qualifying Soldier’s chain-of-command will submit a DA Form 4187 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 Soldier 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 (HFP). DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions that his records should be amended to show that the involuntary extension of his unit's deployment in Iraq required him to serve beyond the 365 day 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. Evidence shows that the applicant served in Kuwait and Iraq during the period from 29 January 2004 to 30 January 2005 for a total of 368 days. 3. Department of the Army Personnel Policy Guidance provides that Soldiers/ units who are involuntarily extended by the Secretary of Defense for extension 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. 4. Based on the foregoing, it would be appropriate in this case to amend the applicant's records to show that he was deployed under the provisions of Title 10, U.S. Code, section 12302 during the period from 29 January 2004 to 30 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 from 28 January 2005 to 30 January 2005. 5. Additionally, the applicant is entitled to non-prorated payment of Involuntary AIP during the period that he was serving under his unit's involuntary extension. As a result it would be appropriate that the Defense Finance and Accounting Service pay the applicant all Involuntary AIP benefits to which he is entitled during the period from 28 January 2005 to 30 January 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 deployed under the provisions of Title 10, U.S. Code, section 12302 during the period from 29 January 2004 to 27 January 2005; b. the applicant's deployment was involuntarily extended under the provisions of Title 10, U.S. Code, section 12302 during the period from 28 January 2005 to 30 January 2005; and c. the applicant is entitled to be paid all benefits associated with Involuntary Assignment Incentive Pay during the period that 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) AR20090000194 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090000194 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1