ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-03700 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to show his eligibility to participate in the Fiscal Year 2006 (FY06) Air National Guard (ANG) Aviator Continuation Pay (ACP) program. ________________________________________________________________ RESUME OF CASE: On 26 Jul 11, the Board considered and denied the applicant’s request to be eligible to participate in the FY06 ANG ACP program, contending that he was not informed of the tenets of the program when he began his active duty tour. However, after a thorough review of the available evidence, the Board found the applicant was ineligible to execute such an agreement as he signed a four-year ACP contract, rather than the five-year contract required for aviators who, such as he, had less than 20 years of aviation service. For a complete accounting of the facts and circumstances of the case and the rationale for the Board’s decision, see the Record of Proceedings (ROP) at Exhibit B. The applicant was notified of the Board’s decision via a notification letter dated 25 Apr 11. By virtue of a letter dated 27 Jan 12, with attachments, the applicant requests reconsideration of his case, indicating that he ultimately served on active duty for more than five years in accordance with the terms of the FY06 ACP policy. In support of his request, the applicant provides an expanded statement and copies of his active duty orders, an amendment thereto, and an unexecuted ACP agreement (Exhibit C). ________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PF recommends denial, indicating there is no evidence of an error or injustice. The applicant’s original request was denied by the Board due to the fact that he was only on 4-year active duty orders instead of 5-year orders. While it appears as though he eventually served for five years and the program in effect at the time allowed for statutory tour officers on four- year orders to sign a five-year ACP agreement, provided they eventually served for the duration of the five-year agreement, the applicant remains ineligible for ACP under the FY06 program because he did not occupy a qualifying position during the matter under review. According to the FY06 ANG ACP policy, in order for members to be eligible to apply for ACP, they must be qualified for operational flying and, in accordance with the definition of aviation service, must be professionally and physically qualified and on aeronautical orders requiring frequent and regular flight. However, according to the orders provided, the applicant was assigned to a position with an Aircrew Position Identifier (API) of 0 (zero), which is a non- rated and non-flying position as referenced in AFI 11-401, Aviation Management. Members assigned to such positions were not eligible to participate in ACP until the FY11 program. A complete copy of the NGB/A1PF evaluation is at Exhibit D. ________________________________________________________________ APPLICANT’S REVIEW OF AIR FORCE EVALUATION: Counsel urges equitable resolution of the applicant’s request based on the evidence provided which indicates he would have fulfilled the term of a five-year ACP agreement, which, according to the NGB advisory, would make him eligible for ACP were it not for the belatedly-raised API 0 issue. Counsel refutes NGB’s assertion that members in API 0 billets were not eligible to apply for ACP prior to FY11 and cites two decisions, one by the Board (BC-2009-02784), and another by the Director of the Air National Guard, where such members were retroactively approved for ACP for pre-FY11 service. Additionally, cursory statutory analysis confirms the written ACP implementation policy never excluded API 0 billets. Nothing in the US Code or ACP implementing regulations distinguished or excluded API 0 billets and, as noted above, the Director, ANG and this Board have granted retroactive ACP to API 0 billeted pilots accordingly. Not only did the written ACP language never exclude API 0 members, but the policy behind the program logically demands their inclusion given that it is a force management tool designed to "enable leaders to develop balanced, trained and experienced forces” of professionals in critical career fields. The Air Force retained the applicant’s expertise, regardless of his API coding-exactly the purpose of the ACP program—and the applicant is simply seeking equitable application of the ACP program. Excluding him, when the written ACP program never excluded officers occupying API 0 positions and when the AFBCMR and the Director of the ANG approved it retroactively for other API 0 billeted pilots' pre-FYll service, would be a discriminatory application causing error and injustice. A complete copy of Counsel’s response, with attachments, is at Exhibit F. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: NGB/A1PF recommends denial, indicating there is no evidence of an error or injustice. The ANG’s ACP policies from FY05 through FY10 are consistent and, as applied, did not include API 0 coded positions. Said policy remained in effect through the execution of FY10 and it was not until two members in FY10 appealed to the Director, ANG that this policy was reevaluated. No ACP applications from previous years were approved and the two cited cases were approved as an exception to policy. These requests initiated an ACP policy review which ultimately resulted in the change of the FY11 policy to include members in API 0 billets. However, the approval of these two cases signaled a future change and not a retroactive one; the previous policies remained in effect as written. A complete copy of the NGB/A1PF evaluation is at Exhibit G. ________________________________________________________________ APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: Counsel reiterates her argument that the equities demand corrective action in her client’s case, given that similar requests by other API 0 pilots for retroactive, pre-FY11 ACP were approved by the Director, ANG and the AFBCMR. Excluding the applicant when the written program never excluded API 0 officers and in view of the noted decisions, would be a discriminatory application causing an error and injustice. Counsel refutes the NGB position that the two pre-FY11 approvals by the Director, ANG constitute exceptions to policy (ETP); characterizing these decisions as ETP rationalizes improper or inconsistent application of the policy pertaining to those API 0 aviators prior to FY11. Further, NGB does not dispute that the ACP policy as written never excluded API 0 pilots as the Director ANG concluded by approving ACP for some of them in 2010. API 0 pilots like the applicant were eligible, did apply, and were approved for retroactive ACP for pre-FY11 service—all belying the unequivocal statement contained in the initial NGB advisory that “Until the policy was changed in FY11, pilots in API 0 billets were not eligible to apply for ACP.” NGB has articulated no conceivable reason for why other retroactive ACP approvals do not create precedence for retroactive approval of ACP here, nor how an “exception to policy” for others could justify disparate treatment here. One of the objectives of the AFBCMR is to ensure the consistent, equitable application of Air Force programs, achieved only by similar approval here. A complete copy of Counsel’s response, including attachments is at Exhibit I. The applicant also provides a response indicating that NGB has conceded he met the length of service requirements which formed the initial basis for the Board’s denial in his case, NGB policy never excluded API 0 pilots, and the AFBCMR and Director, ANG have approved ACP for similarly situated pilots prior to FY11 in contravention to NGB’s stated position. The applicant contends that other retroactive ACP approvals for API 0 pilots occurred because the Director, ANG concluded, after intensive inquiry, discussion, and analysis, that API 0 pilots could not be discriminated against pursuant to the written ACP program, the language of which never exclude API 0 pilots from eligibility. A complete copy of the applicant’s response, with attachments, is at Exhibit J. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. After again reviewing this application and the evidence provided in support of his request, we remain unconvinced the applicant has been the victim of an error or injustice. The applicant and his Counsel argue that because our initial denial in this case rested on the fact the applicant was unable to execute a five-year aviator continuation pay (ACP) agreement, and the applicant has since served the requisite five years, that his record should be corrected to reflect he executed such an agreement. However, since the applicant was ineligible to execute such an agreement due to the fact he occupied an API 0 position during the matter under review, regardless whether this issue was “belatedly raised,” we remain unconvinced that any action is warranted. While Counsel argues that relief should be granted because the noted exclusion of API 0 officers was not explicitly spelled out in the governing statute or in the ACP policy, we do not find this argument sufficient to rule in the applicant’s favor. In this respect, we note the comments of NGB/A1PF indicating that in order for members to be eligible to apply for ACP, they must, among other things, be on aeronautical orders requiring frequent and regular flight; however, the applicant’s API 0 position did not require him to perform frequent and regular flight and he was therefore ineligible to apply for ACP when he commenced his statutory tour. While both Counsel and the applicant argue that the equities demand approval of his request, citing two occasions in 2010 where the Director of the Air National Guard (DANG) granted exceptions to this policy, we do not find this argument sufficient to conclude the applicant is the victim of an error or injustice. In this respect, we note the applicant has presented no evidence whatsoever to indicate the decisions of the DANG in the noted cases were arbitrary, capricious, or represented an abuse of his discretionary authority. While the applicant and his counsel speculate these decisions were motivated by a desire to ensure that API 0 pilots could no longer be discriminated against, speculation is not evidence of an error or injustice. Moreover, we do not find these arguments sufficient to conclude that the Air National Guard’s ACP policy was discriminatory, nor do we find them sufficient to overcome the presumption of regularity in the conduct of government affairs which dictates that in the absence of evidence to the contrary, we must assume the DANG’s decisions to exclude API 0 aviators from ACP eligibility in the years leading up to the noted exceptions to policy and subsequent policy change were the legitimate exercise of his discretionary authority and was based on the operational needs of the ANG during the matter under review. Consequently, we are not convinced that we should, years after the fact, conclude that circumstances should have dictated the applicant, and those similarly situated, should have been offered ACP to secure their continued service when it is clear the use of ACP, which is a retention bonus and not an entitlement, was not necessary to do so. Counsel also argues that this Board has previously granted relief in a similar case, essentially asserting that similar consideration should be applied to the applicant’s case and the requested relief should be granted. We disagree. In this respect, we note that each case before this Board is considered on its own merits, based on the information available to us at the time, and precedent does not bind us. While we do strive for consistency in the manner in which evidence is evaluated and analyzed, we are not bound to recommend relief in one circumstance simply because the situation being reviewed appears similar to another case. While the Board did grant relief in the noted case, the Board was, for whatever reason, forced to deliberate said case without the benefit of an advisory from the National Guard Bureau and, thus, not made aware that API 0 officers were precluded from applying for ACP. While the applicant’s arguments are duly noted, we are not convinced that he is the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 2. 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 issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of probable material error or injustice; and 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-2010-03700 in Executive Session on 2 May 13, under the provisions of AFI 36-2603: The following additional documentary evidence was considered: Exhibit B. Record of Proceedings (ROP), dated 25 Apr 11. Exhibit C. Letter, Applicant, dated 27 Jan 12, w/atchs. Exhibit D. Letter, NGB/A1PF, dated 17 Sep 12, w/atch. Exhibit E. Letter, AFBCMR, dated 19 Sep 12. Exhibit F. Letter, Applicant’s Counsel, dated 17 Oct 12, w/atchs. Exhibit G. Letter, NGB/A1PF, dated 1 Nov 12. Exhibit H. Letter, AFBCMR, dated 9 Nov 12. Exhibit I. Letter, Applicant’s Counsel, dated 7 Dec 12, w/atch. Exhibit J. Letter, Applicant, undated, w/atchs.