ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBERS: BC-2010-03789 COUNSEL: None HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: He be entitled to Variable Special Pay (VSP), Board Certification Pay (BCP), Additional Specialty Pay (ASP), Multiyear Special Pay (MSP), and Multiyear/Single Year Incentive Special Pay (MISP), as a result of his service as a physician with the 21st Civil Support Team (CST), New Jersey Air National Guard (NJANG). _________________________________________________________________ RESUME OF CASE: On 13 March 2012, the Board considered and partially granted the applicant’s requests for VSP and BCP for the period 26 October 2 004 to 30 April 2008; however, they voted to disapprove his requests for ASP, MSP, and ISP/MISP. For an accounting of the facts a nd circumstances regarding the rationale of the earlier decisions by the Board, please see the Record of Proceedings (ROP) at Exhibit I. On 25 April 2012, the applicant’s counsel submitted a request for reconsideration of the applicant’s requests for ASP, MSP, and I SP/MISP. Counsel argues that the Board’s denial of ASP, MSP, and ISP/MISP was flawed based on the Board’s reliance on the AF/JA A advisory which did not consider, mention, or address the law, regulations, or legal arguments made in the applicant’s rebuttal t o it, and, the Board’s reliance on statements in the AF/JAA advisory, which may have inadvertently misled the Board. Counsel indi cates the Board’s denial was based on its acceptance of the argument set forth by AF/JAA that the contracts required approval by a ppropriate authority, but AF/JAA does not identify who the “appropriate authority” is. The applicant’s counsel provides a statement in support of his client’s appeal for reconsideration. The counsel’s complete submission is at Exhibit J. _________________________________________________________________ AIR FORCE EVALUATION: AF/JAA states their review indicates that Air Force Instruction (AFI) 41-109 is the controlling instruction for the applicant’s appeal and that the approval authority for special pay contracts is the Surgeon General of the Air Force (AF/SG), as designee for the Secreta ry of the Air Force (SECAF). JAA indicates that despite never receiving the required approval of the AF/SG, it is evident that the ap plicant had received documents recommending approval of the special pays at the installation level. Whether such documents or assuran ces create an injustice deserving of correction as a matter of equity is a matter for determination by the Board. The complete AF/JAA evaluation is at Exhibit K. _________________________________________________________________ COUNSEL'S REVIEW OF AIR FORCE EVALUATION: The importance of the AF/JAA opinion that AFI 41-109 applies to his client cannot be overstated. They have argued from the start of this p rocess, that the AFI represents the SECAF’s delegation and guidance on the matter. As the Secretary’s delegate, it is axiomatic that the A F/SG has the only authority given. AF/SG can only deny special pay under specific circumstances set out in the AFI (e.g. misconduct or sub standard performance), none of which apply to his client. AF/JAA recognizes his client’s applications were fully approved at the installat ion level in accordance with the governing instruction. Had his applications for specialty pays been processed under AFI 41-109, there was no basis for denying them. In short, the only result that can be reached given that AFI 41-109 applies to his client, it should have been paid. Furthermore, based on the assurances he received prior to accepting the job, as a matter of equity he should receive the specialty pays that were repeatedly promised to him. By law, he was a doctor on active duty and entitled to the same treatment under AFI 41-109 as a ll other doctors on active duty. Therefore, he should be paid ASP, MISP, and MSP for the same period his VCP and BCP were paid. The counsel’s complete rebuttal is at Exhibit M. _________________________________________________________________ THE BOARD CONCLUDES THAT: After a thorough review of the evidence of record a majority of the Board finds the applicant has suffered an injustice due to his good fai th efforts taken after the assurances he was provided by Air National Guard personnel. The applicant meets the qualifications for the speci al pays requested and although there is a lack of endorsement by AF/SG, the Board majority believes there is no basis that AF/SG could have disapproved the pays if the request would have been submitted as it should have been. Therefore, the Board majority recommends the applican t’s record be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that competent authority approv ed his requests for Additional Specialty Pay (ASP), Multiyear Special Pay (MSP), and Multiyear/Single Year Incentive Special Pay (MISP) for t he period 26 October 2004 to 30 April 2008. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-03789 in Executive Session on 19 September 2013, under the provis ions of AFI 36-2603: voted to correct the records, as recommended. voted to deny the applicant’s requests; however, chose not to write a minority report. The following documentary evidence for AFBCMR Docket Number BC-2010-03789 was considered: Exhibit I.  Record of Proceedings, dated 21 Mar 12, with Exhibits A through H. Exhibit J.  Letter, Counsel, dated 25 Apr 12. Exhibit K.  Letter, AF/JAA, dated 26 Mar 13. Exhibit L.  Letter, AFBCMR, dated 28 Mar 13. Exhibit M.  Letter, Counsel, dated 5 Apr 13.