RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05602 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His Aviator Retention Pay (ARP) agreement eligibility effective date be changed to 2 Feb 13 instead of 27 Aug 13. ________________________________________________________________ APPLICANT CONTENDS THAT: The Air National Guard (ANG) FY13 ARP program policy was not released until 7 Jun 13 and the FY13 National Defense Authorization Act (NDAA) does not permit back dating of his ARP contract before 7 Jun 13. In support of his request, the applicant provides copies of his FY13 ARP Statement of Understanding (SOU), Active Guard Reserve (AGR) orders and a letter from the Director of Staff, Joint Forces Headquarters, Oregon National Guard (JFHQ-OR-AC/DS). The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a member of the Oregon Air National Guard (OANG) and he is currently serving on an AGR tour. According to Special Order A-Y000074 dated 14 Jan 13, the applicant was placed on an AGR continuation tour for the period of 3 Feb 13 through 31 Jan 17. The applicant’s ARP agreement is for the period of 27 Aug 13 through 26 Aug 17. In a letter dated 26 Aug 13, JFHQ-OR- AC/DS states the applicant will be issued follow-on orders upon completion of his current tour to fulfill his Active Duty Service Commitment (ADSC) for ARP. 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 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 25 Jun 14, SAF/MRBR forwarded the applicant copies of the noted SecAF decisions for review and comment within 30 days (Exhibit D). As of this date, this office has not received a response. ________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PF recommends approval of the applicant’s request. Upon review of his application, A1PF concluded that he should be permitted to adjust the effective date of his current FY13 ARP agreement from 27 Aug 13 to 2 Feb 13. This adjustment would not change the annual amount ($15,000 per year) nor would it create additional payments. It would simply change the effective date of future anniversary payments and the value of the final payment. The effective dates for ARP would be changed with Defense Finance and Accounting Service (DFAS) to 2 Feb 13 thru 1 Feb 17 and the final payment would be recomputed to reflect the new period of eligible service. The complete A1PF evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: On 14 Feb 14, the copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit C). 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. We note that AIPF recommends approval, stating that the adjustment would not change the annual amount nor would it create additional payments. However, in view of the fact the Secretary of the Air Force (SecAF) has determined that any delay in the approval of the ARP program for a given year cannot become the basis for a retroactive recovery, and because this Board acts on behalf of the SecAF in these matters, we are not persuaded the applicant is the victim of an error or injustice. Therefore, the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice. In view of the above and in the absence of evidence to the contrary, we find no 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 BC-2013-05602 in Executive Session on 18 Sep 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 25 Nov 11 [sic], w/atchs. Exhibit B. Letter, NGB/A1PF, dated 23 Jan 14. Exhibit C. Letter, SAF/MRBR, dated 14 Feb 14. Exhibit D. Letter, SAF/MRBR, dated 25 Jun 14, w/atchs.