RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04502 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His initial eligibility date for the Fiscal Year 2012 (FY12) Aviator Continuation Pay (ACP) Program be changed to 1 Oct 11. ________________________________________________________________ APPLICANT CONTENDS THAT: He was the victim of an injustice because the Air Force did not release the FY12 ACP Program in time for FY12. As a pilot, he committed a full two-year assignment from 1 Oct 11 through 30 Sep 13 to allow him to enter into an FY12 two-year ACP agreement. Because of the delay in the release of the FY12 ACP Program, when the program was implemented he no longer had the minimum agreement period of two-years remaining on his orders to receive ACP. Therefore, he should receive the full FY12 ACP beginning 1 Oct 11. The applicant’s complete submission, with attachments, is at Exhibit A. _________________ ______________________________________________ STATEMENT OF FACTS: The applicant served as a pilot in the Air National Guard (ANG) during the period of time in question. On 1 Oct 11, the applicant accepted two-year orders to fly for the ANG through 30 Sep 13. On 30 Mar 12, the applicant signed the FY12 Pilot ACP Agreement Statement of Understanding (SOU), selecting Option B (two years), identifying 1 Oct 11 as the start of his program. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility (OPRs) which are included at Exhibits C and E. ________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PF recommends approval, indicating there is evidence of an error or injustice. In accordance with Special Order A-9000302, dated 29 Sep 11, the applicant was ordered to duty from 1 Oct 11 through 30 Sep 13. The period would allow him to enter into a two-year FY12 ACP agreement. However, the release of the FY12 ACP policy was delayed until 24 Feb 12. Because of the delay, the applicant was unable to submit his application for ACP until after 24 Sep 12, which is outside of the 30 day processing window allowed per the ANG FY12 ACP Policy. This delay also made him ineligible because he no longer had the minimum agreement period of two years remaining on his orders. The delay was through no fault of his own and the applicant meets all other eligibility requirements. A complete copy of the NGB/A1PF evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 21 Jan 13 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ SECOND AIR FORCE EVALUATION: The SAF/MRB Legal Advisor states that the Board has the authority to correct the record to show acceptance by the Secretary of a valid ACP contract signed by the applicant on a date that would capture the whole period of eligibility, however, should be very cautious about granting such applications. To warrant relief, the applicant must prove by sufficient evidence that he or she is the victim of a serious injustice not shared by other, similarly situated officers. Because it is impossible to execute incentives for past conduct, backdating ACP agreements violates the intent of Congress in authorizing ACP payments in the first place. However, due to the almost perpetual expectation that ACP will continue to be provided to Air Force pilots, many officers may develop an erroneous expectation that ACP is actually an entitlement versus an incentive. Conceivably, the Board may find this belief sympathetic and grant relief based on injustice, if that believe led to an active service commitment. Every case must be considered on its own facts and these facts require deliberation by the AFBCMR panels. As in all cases, the burden of proof remains with the applicant. A complete copy of the SAF/MRB Legal Advisor evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF THE SECOND AIR FORCE EVALUATION: A copy of the second Air Force evaluation was forwarded to the applicant on 7 May 13 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibits F). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant contends the delay in the release of the FY12 ACP Program created an injustice which prevented him from participating in the program for which he met all of the qualifications except submitting a timely application. We considered the applicant’s complete submission in judging the merits of the case and agree with the opinion and recommendation of NGB/AIPF and adopt its rationale as the bases of our conclusions the applicant has been the victim of an injustice. The Board believes the applicant was fully aware of the pending FY12 ACP program and intended to participate when he agreed to a two-year continuation commitment with the Air Force at the 1 Oct 11 start of the FY. Given that the applicant was a fully qualified member of a career field which the Air Force identified as requiring substantial financial incentives in order to maintain an adequate pool of available resources; served during the FY in which the Air Force intentionally incentivized all qualified members through the implementation of continuation incentives; and consciously made the full continuation commitment intended by the Air Force through implementation of the program; then, the fact the Air Force did not have the FY12 program in place by the start of FY12 constitutes an injustice which denied the applicant the program participation he otherwise qualified for by making the very commitment the Air Force intended. In addition, while we note the applicant failed to sign his application within the 30-day window required by ANG Policy, the National Guard Bureau’s recommendation to grant the applicant’s request in the face of the violation of their policy is sufficient justification for the Board. Therefore, we recommend his records be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 1 October 2011 he applied for the FY12 Pilot Aviator Continuation Pay Program, Option B, and his application was approved by competent authority. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-04502 in Executive Session on 13 Jun 13, under the provisions of AFI 36-2603: Panel Chair Member Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 30 Mar 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, NGB/A1PF, dated 11 Jan 13. Exhibit D. Letter, SAF/MRBR, dated 21 Jan 13. Exhibit E. Letter, SAF/MRB Legal Advisor, dated 9 Apr 13. Exhibit F. Letter, AFBCMR, dated 7 May 13, w/atch.