RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-00220
		INDEX NUMBER:  128.00

	XXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No

_______________________________________________________________

APPLICANT REQUESTS THAT:

He be paid separation allowance based on his separation from the Air Force in Oct 1999.  He also requests that the recoupment of his aviator continuation pay (ACP) be waived.

_______________________________________________________________

APPLICANT CONTENDS THAT:

He only signed for the ACP agreement because he was told if he didn’t he would be assigned to Korea as an Army liaison officer.

Although he signed the ACP agreement, he planned to turn down promotion to major and separate in 1998, but before he had the chance to turn down major, the rules changed.  After that, he planned to write a letter to the board requesting not to be promoted and to transfer his commitment to the Air National Guard under the FY98 Limited Active Duty Service Commitment (LADSC) program.  He wrote his letter, got hired by the Utah Air National Guard, but before he could apply for the LADSC waiver, the program closed out early.  He had been passed over for major, but the board results were not announced before the LADSC program closed out, making him ineligible to apply.  His plan now was to get passed over again, take the separation allowance and just be done.  Before his second board met, the rules changed making officers that wrote the board to decline promotion ineligible for separation allowance.  He had already ended any chance of a career due to his efforts to separate over the past year and was beyond the point of return.  He wrote the letter requesting not to be promoted and separated in Oct 1999.  As a twice deferred officer, he was ineligible to serve in the “points only” job that would have earned him a retirement from the Reserves.  

In addition to receiving no separation allowance, and being ineligible to qualify for a Reserve retirement, he is also being billed for the “unused portion” of his ACP bonus.  His research of DOD Financial Management Regulation (DOD FMR), Volume 7A, Chapter 15, paragraph 1505 and subparagraph 150501 that governs repayment of the bonus reveals that recoupment is not required.

The applicant’s complete submission is at Exhibit C.

_______________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty on 5 May 1988 and separated in the grade of captain on 10 Oct 99 after being twice passed over for promotion to major.  As a result of an ACP agreement he entered into on 10 May 96, the applicant was required to repay `$16,642.85 in unearned ACP.  The applicant was offered selective continuation after his second non-selection to major, but refused.  Consequently, he was not eligible for a separation allowance.

_______________________________________________________________

AIR FORCE EVALUATION:

The Chief, Aviation Continuation Pay, AFPC/DPAOY evaluated this application and recommends denial of the applicant’s request.  

Changes in separation and entitlement regulations/instructions have no bearing on the decision to recoup the unearned portion of the applicant’s ACP.  The fact that the Air Force changed separation instructions to thwart members from “gaming the system” regarding separation pay does not change the applicant’s status under his ACP agreement.  The applicant was offered continuation on active duty after his second non-selection, but voluntarily chose to separate.  Under this circumstance, AFI 36-3004 requires that the unearned portion of the ACP be recouped.  The applicant’s treatment after separation was consistent with standard separation practices.

The complete evaluation is at Exhibit C.

The Separation Procedures Section, AFPC/DPPRS, evaluated this application and recommends denial of the applicant’s request.

Based on the documentation in the file, they believe the applicant’s separation to be consistent with the procedural and substantive requirements of the discharge regulation.  HQ AFPC/DPP 291249Z Oct 98 message stated that the National Defense Authorization Act became law on 17 Oct 98.  It was effective for all boards convened on or after that date.  The law mandated that “officers twice non-selected for promotion to the next higher grade are not, repeat are not, entitled to separation pay if either or both of those non-selections for promotion resulted from an officer who requested in writing not to be selected or who otherwise directly caused non-selection through written communication to the board (U.S.C. 10, Section 1174a).”  This change in law was widely publicized in national, local, and base publications.

The complete evaluation is at Exhibit D.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the evaluations and states that they are essentially correct, but incomplete.  He states that the constantly changing set of rules associated with personnel actions governing separations have caused him financial hardship, which the evaluations did not address.  He states that the bottom line is that he took actions to separate that were within the bounds of the governing regulations only to have the regulations change prior to his application for separation being processed.  He states that he has repaid his ACP bonus debt with interest, but is still requesting separation allowance.  He has attached a talking paper he states that shows the effect of changing regulations on his separation.

The applicant’s complete response is at Exhibit F.

_______________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

_______________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

_______________________________________________________________

The following members of the Board considered this application in Executive session on 19 July 2001, under the provisions of AFI 36-2603:

	Vice Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Jan 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPAOY, dated 5 Mar 01.
    Exhibit D.  Memorandum, AFPC/DPPRS, dated 17 Apr 01.
    Exhibit E.  Letter, SAF/MIBR, dated 11 May 01.
    Exhibit F.  Letter, Applicant, 20 May 01.

                                   
                                   Vice Chair