RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-02515 INDEX CODE:	128.04

COUNSEL:	NONE HEARING DESIRED: NO

APPLICANT REQUESTS THAT:
His records be corrected to reflect his entitlement to Fiscal Year 2007 (FY07) Aviation Continuation Pay (ACP).

APPLICANT CONTENDS THAT:
He was eligible for ACP under the Fiscal Year 2007 (FY07) ACP program but due to errors in the local Active Guard Reserve (AGR) and the 0-5 (Lieutenant Colonel – Lt Col) control grade accounting programs, his actual AGR orders began on 1 October 2007, rather than in August or September 2007. Because his orders were not effective until 1 October 2007, he did not qualify for the ACP program under the FY07 guidelines as he and unit command staff had intended him to be. Although it was made clear to him that his ACP eligibility would not be endangered, the ACP program requirements eventually did change in January 2008 which exposed him to a change in his ACP eligibility status. ACP guidelines for FY08 allow ANG aviators ACP eligibility up to
20 years of aviation service (YAS) provided they are on active duty orders for at least one continuous year. The FY07 guidelines had no such YAS restriction. Therefore, had his active duty orders been prior to 1 October 2007, as he had been promised they would, he would have been ACP eligible under the FY07 program entitling him to five years of ACP at $25,000 per year. He was a military technician with the New Jersey ANG (NJANG) and only accepted the AGR position based on the understanding between he and his command that he would be entitled to ACP under FY07 guidelines.

In support of his appeal, the applicant provides a personal statement, NJANG control  grade program information, several affidavits from individuals confirming the applicant’s contentions, pertinent emails, personnel paperwork, ANG ACP policy documentation, his ACP agreement, and his aeronautical and AGR orders.

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

STATEMENT OF FACTS:
The applicant, a current member of the NJANG, was ordered to active duty effective 1 October 2007 through 19 September 2012
via an order dated 19 September 2007. On 28 September 2007, he signed an ACP Agreement displaying an effective date of 1 October 2007. On 6 November 2007, he received an amended order placing him on duty through 30 September 2012. His Aviation Service Date (ASD) is 20 November 1987.

AIR FORCE EVALUATION:
NGB/A1PS cites the ANG subject matter expert (SME) and recommends denial. The SME, NGB/A1FF, notes that despite his statements the intent was to start his active duty prior to the implementation of the FY08 ACP policy, the applicant’s active duty order was effective 1 October 2007, the first day of the FY08 program, thereby making him ineligible for the FY07 ACP program. Additionally, and under the provisions of the FY08 ACP policy guidance, he must be able to complete the period of the agreement prior to reaching his 20th YAS. As the applicant reached 20 YAS on 20 November 2007, he is not eligible for FY08 ACP.

A complete copy of the NGB/A1PS evaluation, with attachment, is at Exhibit B.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Counsel for the applicant argues that his client accepted an AGR position with his unit with the clear understanding that he would receive ACP as a result. His command supports this contention. The issue is that while the applicant applied for, was selected, and began working in the AGR position prior to FY08, the orders bringing him on duty were completed with a start date of 1 Oct
07. His application was therefore considered against the requirements of the FY08 ACP program and not the FY07 ACP program. He met the requirements to receive ACP in the amount stated over a five-year period of service under the FY07 program but not under the FY08 program. The injustice in this case is that the ANG refuses to consider his request basing their decision to deny on program requirements alone and the error in this case is that his orders were cut with an erroneous start date for his AGR tour.  Applicant respectfully requests his order be amended to reflect an FY07 start date or any alternative action as is necessary to qualify him for ACP as originally intended.

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

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. Therefore, in the absence of evidence of the applicant’s entitlement to FY07 ACP, or that he was treated differently from others similarly  situated, 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 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 AFBCMR Docket Number BC-2008-02515 in Executive Session on 2 June 2009, under the provisions of AFI 36-2603:

Panel Chair 
Member
Member
The following documentary evidence with regard to AFBCMR Docket Number BC-2008-02515 was considered:

Exhibit A. DD Form 149, dated 20 May 08, w/atchs. Exhibit B. Letter, NGB/A1PS, dated 13 Apr 09, w/atch. Exhibit C. Letter, SAF/MRBC, dated 21 Apr 09.
Exhibit D. Letter, Counsel, dated 15 May 09, w/atch.