RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03525 COUNSEL: NONE HEARING DESIRED: NOT INDICATED APPLICANT REQUESTS THAT: His Aviator Retention Pay (ARP) agreement effective date be changed to 13 Feb 13 instead of 7 Jun 13. APPLICANT CONTENDS THAT: The delayed release date of the annual ARP agreement (7 Jun 13) voided his only opportunity to apply for the $25,000 yearly bonus. He would not be penalized approximately $40,000 over the next four years had the agreement been released at the beginning of FY13 as in normal years. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is a member of the Air National Guard (ANG). According to Special Order AA-0000216 dated 1 Feb 13, he was laced on Extended Active Duty (EAD) effective 13 Feb 13 through 12 Feb 17. The applicant’s FY13 ARP Agreement Statement of Understanding (SOU) reflects that on 28 Jun 13 he requested Option A, $25,000 per year for a 4 year period effective 13 Feb 13 through 12 Feb 17. The request was approved by his commander on 6 Mar 14. In a letter dated 5 Nov 13, the applicant requested that his case be kept open while he submitted the corrected documents to NGB/A1PF for further consideration. On 17 Dec 13, SAF/MRBC advised the applicant that in order to comply with a statutory mandate to process all applications in a more expeditious manner, extensions of time to in which to gather more information could not be honored. Therefore, his case was administratively closed. He was informed that his case would be reopened for further processing and consideration by the Board upon his request. On 12 May 14, the Secretary of the Air Force (SecAF) denied relief to two applicants making similar arguments to the AFBCMR. Her memorandum stated, in part, that “Aviator Continuation Pay (ACP) is an incentive program, not an entitlement. The intent of Congress (and therefore the purpose of the statute) was to provide an incentive that would encourage aviation service officers not to leave active duty. Backdating an ACP agreement essentially offers an incentive to an officer for a decision he/she has already made and provides a retention bonus for a period of service already served. Doing so would depart from the purpose of the statute. Furthermore, because the decision whether or not to offer ACP in any given year is entirely at the discretion of the Secretary, any delay in approval of the program for a given year cannot become the basis for a retroactive recovery.” On 12 Jul 14, SAF/MRBR forwarded the applicant copies of the noted SecAF decisions for review and comment within 30 days (Exhibit I). As of this date, this office has not received a response. AIR FORCE EVALUATION: NGB/A1PF concluded the applicant is ineligible and should not be permitted to request, execute, or be paid for a FY13 ARP agreement as the package presented was incomplete. The documents provided do not provide a complete picture of his eligibility. In order to provide a complete package for re-evaluation, documents and/or corrections are required. Should the applicant decide to provide the additional documentation listed, A1PF will reassess the case. A complete copy of the A1PF evaluation is at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a letter dated 11 Mar 14, the applicant requested his application be re-opened. He provides the required documentation to support his request for FY13 ARP, Option A for four years at $25,000 per year effective 13 Feb 13 to 12 Feb 17. He provides an NGB/HR exception to policy letter signed by HR and his wing commander equivalent (ANGRC/CC) supporting his request to grant Option A of the agreement. He also provides a contingency ARP agreement supporting Option B for $15,000 per year effective 21 Jun 13 to 12 Feb 17 should the Board not find in his favor of his original request. The applicant’s complete submission, with attachments, is at Exhibit F. ADDITIONAL AIR FORCE EVALUATION: NGB/A1PF recommends approval of the applicant’s request. Upon review, A1PF concluded he should be permitted to request, execute and be paid for the FY13 ARP effective 13 Feb 13 through 12 Feb 17 at $25,000 per year. According to Special Order AA-0000216 dated 1 Feb 13, he was ordered to duty from 13 Feb 13 through 12 Feb 17. This period would have allowed him to enter into an FY13 ARP agreement In Accordance With (IAW) paragraph 2.1 of the Air National Guard (ANG) FY13 ARP Policy. The FY13 ARP policy was delayed until 7 Jun 13 resulting in the application submission to be delayed. This delay prevented him from applying at the beginning of his eligibility and was through no fault of his own. The applicant meets all other eligibility requirements. The complete A1PF evaluation is at Exhibit G. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the Air Force evaluation was provided to the applicant on 12 Jul 14 for review and comment within 30 days (Exhibit H). As of this date, this office has not received a response. 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 to warrant approval of the applicant’s requests for FY13 ARP Option A or B. We note that NGB/AIPF recommends approval of the applicant’s request for FY13 ARP Option A ($25,000 per year for four years) effective 13 Feb 13 to 12 Feb 17 stating the delay of the FY13 ARP policy prevented him from applying at the beginning of his eligibility and was through no fault of his own. We also note the applicant requested ARP Option B on 11 Mar 14 with an effective date of 21 Jun 13. However, as noted above, ARP is an incentive program, not an entitlement. The intent of Congress (and therefore the purpose of the statute) was to provide an incentive that would encourage aviation service officers not to leave active duty. True incentives influence decisions about the future. Backdating an ARP agreement essentially offers an incentive to an officer for a decision he has already made and provides a retention bonus for a period of service already served. Doing so would depart from the purpose of the statute. Moreover, because the decision whether or not to offer ARP in any given year is entirely at the discretion of the Secretary, any delay in approval of the program for a given year cannot become the basis for a retroactive recovery. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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 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 material error or injustice; the application was denied without a personal appearance; 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-2013-03525 in Executive Session on 26 Feb 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 28 Jun 13, w/atchs. Exhibit B. Memorandum, NGB/A1PF, dated 9 Sep 13. Exhibit C. Letter, SAF/MRBR, dated 15 Oct 13. Exhibit D. Letter, Applicant, dated 5 Nov 13. Exhibit E. Letter, SAF/MRBC, dated 17 Dec 13. Exhibit F. Letter, Applicant, dated 11 Mar 14. Exhibit G. Memorandum, NGB/A1PF, dated 24 Apr 14. Exhibit H. Letter, SAF/MRBR, dated 12 Jul 14. Exhibit I. Letter, SAF/MRBR, dated 12 Jul 14, w/atchs. 1 2