RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00047
		INDEX CODE:  128.10

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His 310-day shortfall in his Aviator Continuation Pay (ACP) commitment be waived and his military pay account in the amount of $21,572.78 be reimbursed to him.

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APPLICANT CONTENDS THAT:

His debt was based on a shortfall of 310 days served towards his ACP commitment.  He has already filled over 260 days and is on active duty orders for another 270 days.  By 30 Sep 02, he will have served over 530 days of active duty, which is in excess of the shortfall by 220 days.  Therefore, he is requesting that this error be corrected, and the corresponding debt of $19,647 be eliminated and the amount of money he has paid on the debt refunded.

In support of his appeal, the applicant provided copies of his DD Forms 214, Certificate of Release of Discharge from Active Duty, his Military Personnel Appropriation (MPA) orders, a military pay account statement, an ACP recoupment worksheet, and a letter from the Defense Finance and Accounting Service (DFAS).

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Available documentation indicates that the applicant entered on extended active duty on 1996.  He was released from active duty on 5 Jan 01 under the provisions of AFI 36-3209 (Termination of AGR Military Duty Tour/Conditional Release).  He was credited with 19 years, 2 months, and 1 day of active duty service.

The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force.

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AIR FORCE EVALUATION:

ANG/DPFP recommended denial.  ANG/DPFP noted that On 5 Jan 01, the applicant terminated his ACP contract and left Active Guard Reserve (AGR) status, one year after signing his ACP contract.  Currently, he is on extended active duty (EAD) orders in support of Operation Noble Eagle from 1 Oct 01 to 30 Sep 02.

According to ANG/DPFP, after terminating his full-time AGR orders, the applicant generated a debt of $21,527.78.  In accordance with Air National Guard Fiscal Year 2000 Aviator Continuation Pay (ACP,) Implementation Guidelines, dated 13 Dec 99, “if member separated before completing the ACP service commitment prior payment is recalculated using the daily prorated method and excess recouped.  No future payments are authorized.” The debt was identified, calculated and collected according to the established guidelines.

According to ANG/DPFP, ACP entitlements were not designed for members not assigned to a full-time AGR unit manning document (UMD) position.  It does not allow pilots to break up their full-time service, and does not have provisions for paying Traditional Guardsmen who are placed on EAD.  The applicant is no longer assigned to a full-time AGR UMD position and is currently a Traditional Guardsman.

A complete copy of the ANG/DPFP evaluation, with attachments, is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, the applicant indicated that he understands that ACP was not designed for members serving in different pay status formats.  He does not feel that in his current situation that he would be eligible to start receiving ACP as an activated Traditional Guardsman.  However, he is not asking to start receiving the ACP.  He is asking to be credited for serving 652 days of active duty as a current and highly qualified F-16 Instructor Pilot.  He believes the ACP was intended to keep pilots serving in the ANG.  He will have actively served for 652 days at the point his activation orders terminate on 30 Sep 02.  

He may be forced to stay on after 30 Sep 02, adding to the amount of active duty days served. In his opinion, he has more than complied with the intent of the ACP.

Applicant’s complete response, with attachments, is at Exhibit D.

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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 error or injustice warranting corrective action.  We note that when the applicant entered into his ACP agreement, he incurred a service commitment which required that he remain a full-time AGR for the number of years equal to the years of his ACP payment.  The available evidence indicates that the applicant terminated his ACP agreement when he left AGR status and became a Traditional Guardsman prior to completing his ACP service commitment.  Since the contract stipulated that he continue in an AGR status, he incurred an indebtedness to the government as a result of the recoupment of the unearned portion of his ACP entitlement.  Furthermore, the applicant acknowledges that he understood that ACP was not designed for members serving in a different status.  In view of the foregoing, and in the absence of evidence that the applicant’s AGR tour was erroneously terminated, or that he was treated differently from similarly situated individuals, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of 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.

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The following members of the Board considered AFBCMR Docket Number 02-00047 in Executive Session on 4 Jun 02, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Jan 02, w/atchs.
    Exhibit B.  Letter, ANG/DPFP, dated 21 Mar 02, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 5 Apr 02.
    Exhibit D.  Letter, applicant, dated 22 Apr 02, w/atchs.