RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2005-00129
		INDEX CODE:  128.10

		COUNSEL:  NONE

		HEARING DESIRED: YES

MANDATORY CASE COMPLETION DATE:  7 July 2006

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APPLICANT REQUESTS THAT:

The Air Force’s decision to recoup conditional Aviation Career Pay (ACIP) (sic) in the amount of $23,958.33 be rescinded.  

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APPLICANT CONTENDS THAT:

He contends part of the ACIP ($10,021) was recouped in April/May 2003.  The rest is currently being withdrawn with interest from his federal civilian paycheck beginning 15 January 2005.  He contends he submitted a waiver of Active Duty Service Commitment (ADSC) that was signed by the 12th Air Force commander.  Around the time his ACIP was being recouped, he continued to maintain currency and qualification in both the A-10 fighter and the C-130J aircraft.  He continues to fly both aircraft in active and in military technician status with the Air National Guard (ANG).  He continues to meet DoD and Air Force Instruction (AFI) criteria for eligibility of both continuous and conditional flight pay.  The Secretary of the Air Force Personnel Council (SAF/PC) stated they approved his ADSC waiver as written.  Further, SAF/PC did not question his eligibility to receive ACIP, only that the bill was being charged to the Air Force and not the National Guard Bureau (NGB).  He contends the recoupment was likely the result of an administrative error in which a standard Palace Chase form letter was sent to the Defense Finance and Accounting Service (DFAS) by the Air Force Senior Leader Management Office (AFSLMO).  AFLSMO was not aware of the ADSC waiver or of its approval by SAF/PC.  In fact, the Palace Chase form letter inferred SAF/PC had denied the ADSC waiver.  

After 18 months of research, he is now aware that SAF/PC, on 14 November 2002, made a unilateral decision to terminate the ADSC rather than accept the ADSC waiver request.  He has confirmed that the ADSC waiver was received and reviewed by SAF/PC.  Their decision to terminate the ADSC and ACIP was not communicated to him, the 12th Air Force commander or the Adjutant General for the State of Maryland who assisted in the ADSC waiver request.  

After initially receiving word the ADSC waiver had been approved by SAF/PC the recoupment action by the Air Force was not only unexpected but it created a significant financial hardship at the time.  He contends the active duty cost savings from his voluntary forfeiture of retirement pay exceeds $96,000 and by the time he is eligible for a Reserve retirement at age 60 the cost savings will have been over $800,000, not including healthcare costs.

In support of his appeal, the applicant has provided personal statements, letters of support from his ANG chain of command, copies of his ADSC waiver request and SAF/PC response, his DD Form 214, Certificate of Release or Discharge from Active Duty, a sequence of events timeline, and several email trails.

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

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STATEMENT OF FACTS:

Applicant a former Air Force pilot and current military technician member of the Maryland Air National Guard (MDANG) began his military career on 30 June 1975 and began active duty with the Air Force on 30 May 1979.  He served over 23 years in the Air Force before joining the MDANG in December 2002.  As he had served over 20 years of active duty when he left the Air Force to serve with the MDANG, he was eligible for a 20-year retirement.  He set aside the 20-year retirement opting instead to continue his military career in the MDANG as a fulltime military technician.  Additionally, prior to his separation from the Air Force, he had submitted a waiver request to SAF/PC asking that his ADSC be waived for the purpose of joining the MDANG.  SAF/PC approved his request for waiver of his remaining ADSC on 15 November 2002.  However, SAF/PC determined he was required to reimburse the US Government for the unearned portion of his Aviation Continuation Incentive Pay (ACIP).  He is currently serving as a colonel in the MDANG with over 26 years of active and Reserve service.

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AIR FORCE EVALUATION:

AFPC/DPAO notes the applicant’s and others’ misuse of the acronym ACIP.  ACIP does not stand for Aviation Continuation Incentive Pay or as it is sometimes referred to as the “Bonus.”  ACIP stands for Aviation Career Incentive Pay and is normally referred to as Flight Pay.  Aviator Continuation Pay (ACP) is the correct name and acronym to use when referring to what is commonly called “the pilot bonus.”  DPAO contends he requested two waiver actions: a waiver for his ADSC and a waiver to the standard separation processing timelines.  He never requested any waiver to, or forgiveness from, the forgiveness/recoupment of debt of unearned ACP monies.  DPAO contends he should have been aware of the requirement for recoupment of Aviator Continuation Pay (ACP) as he signed an agreement on 23 December 1999 that specifically stated his understanding that should he leave rated service with the Air Force, his entitlement to ACP would stop and the unearned portion of ACP would be considered a debt to the US Government and would be recouped on a pro rata basis.  Additionally, he should have been aware of Air Force Instruction (AFI) 36-3004, which sets eligibility requirements and governs aviator bonus programs for all US Air Force pilots.  This Instruction does not apply to US Air Force Reserve, Air National Guard, or Medical Service Corps officers.  DPAO notes that monies under the active duty program elements cannot be paid to non-active duty members or entities.  

DPAO notes its difficulty in understanding the exact nature of his request.  DPAO states while ACP recoupment appears to be the issue, there are too many references to ACIP, or flight pay, to legally and assuredly recommend action on this case.  That said, DPAO states the ACP recoupment was in accordance with law and directives that govern the ACP program and that according to DFAS, ACP recoupment is not waiverable.  DPAO notes the applicant was unaware that ACP monies would be recouped.  There is no AFPC waiverable authority to rescind the recoupment action or to continue the Active Duty ACP program for a rated officer in the ANG.  DPAO states they cannot suspend legal direction to grant his request.  DPAO believes this issue is up to DFAS to determine or resolve.

DPAO’s complete evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 5 August 2005 for review and comment within 30 days.  As of this date, no response has been received by this office.

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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 an 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 office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  The Board took note that two acronyms ACIP (Aviation Continuation Incentive Pay – Flight Pay) and ACP (Aviation Continuation Pay – Flight Bonus Pay) were misunderstood or at least misused throughout the application.  On 23 December 1999, the applicant signed an ACP agreement to serve until 19 September 2004 and indicated his understanding that should he not fulfill the requirement of the contract, the Government would recoup, on a pro rated basis, any monies he did not earn as a result of defaulting on the original agreement.  Furthermore, according to the Defense Finance Accounting Service (DFAS), ACP recoupment is not waiverable.  He further contends he, nor his ANG rating chain, were notified by SAF/PC that his ADSC waiver had been approved, and perhaps most importantly, that recoupment action of the ACP would begin.  However, the record shows SAF/PC had reviewed and decided his request within one week of its submission on 8 November 2002.  While we note he has maintained his qualification in dual weapon systems as a rated officer and continues to receive ACIP, there are no provisions to allow him to receive ACP as a dual status military technician in the ANG.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved.  Therefore, the request for a hearing is not favorably considered.

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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 BC-2005-00129 in Executive Session on 25 October 2005, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Nov 04, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPAO, dated 1 Aug 05, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 5 Aug 05.

                                   
                                   Panel Chair