ADDENDUM TO RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:	BC-2014-00203

(b) (6), (b) (7)(C) 	

COUNSEL:	NONE HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
He	receive	retroactive	Consolidation	of	Special	Pays	(CSP)	to include:

a.	Retroactive conversion to CSP of his medical special pay portfolio for the period of 1 July 2009 through 30 June 2013.

b.	Compensation for balance between his legacy pay received and CSP entitlement.

c.	A 1-year CSP contract be initiated to cover the current year from 1 July 2013 through 30 June 2014.

d.	By amendment at Exhibit F, $57,000.00 for the balance between legacy pays received and CSP entitlement for the period.

RESUME OF CASE:
On 5 August 2014, the Board for Corrections of Military Records (BCMR) considered and denied the applicant’s request to receive retroactive CSP to include the difference between his legacy pay and CSP entitlement, and a 1-year CSP contract. The Board agreed with the opinion and recommendation of the Air Force OPR that there was no error in the record. A complete copy of the Record of Proceedings (ROP) is attached at Exhibit E.

According to the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, he was released from active duty for the purpose of retirement on 31 December 2014 in the grade of colonel after serving 26 years, 3 months, and 19 days of active duty service.

By application, dated 25 November 2015, the applicant requests reconsideration noting some of his original contentions along with providing new details regarding the CSP eligibility. He is the only veterinarian in the Air Force who did not convert to CSP; there was no incentive for him to have not converted, and it was in his best interest to convert had he been informed; and $57,000 in  lost  earnings,  representing  professional  expertise/labor

effectively provided gratis to the Air Force. As new relevant evidence, he provides multiple case laws to show precedent in which Service BCMRs have previously granted these types of requests. The facts presented in his case demonstrates clear intent to remain on active duty, meeting the spirit/intent of the CSP statute. This, coupled with the fact (tacitly substantiated by DPANF) that he was unaware of his eligibility for CSP, demonstrates he has met the burden to obtain appropriate relief.

The applicant’s complete submission, with attachments, is at Exhibit F.

AIR FORCE EVALUAITON:
AFPC/DP2N (previously known as AFPC/DPANF) recommends approving the applicant’s request to receive retroactive CSP pay to include the difference between his legacy pay and CSP entitlement, and a 1-year CSP contract based on the additional information provided by the applicant, which shows precedent for retroactive pays. Pays that are earned and not applied for because of a lack of knowledge of their existence through a potential failure of the Air Force to notify the member of their availability appears to constitute an injustice as described that “shocks the sense of justice.”

In the AFPC/DPANF advisory opinion, dated 30 April 2014, it notes that “This may or may not substantiate his claim that word about the CSP was not well advertised.” DP2N believes the additional information added above with respect to gaps in their socializing the pays, while clearly stating it was well advertised through traditional Public Health Channels and the BSC Corps, but potentially lacked universal socialization, provides a clearer understanding that they may well have missed those outside traditional Public Health channels and those in more senior positions. In addition, DPANF had been erroneously advised that retroactive pays were illegal and should never be granted. The DPANF advisory opinion notes that these retroactive pays could be considered an anti-deficiency act violation and so the advisory was written with that context in mind. DP2N believes in both the original DD Form 149 and the reconsideration DD Form 149, the applicant makes his case showing an injustice has occurred and they believe that not being informed of the availability to apply for and earn additional compensation that was available to others does constitute an injustice. There is no conceivable reason that a right thinking person would forfeit these pays, totaling more than
$54,000 [sic], had they known.
The complete AFPC/DP2N evaluation, with attachments, is at Exhibit G.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
He does not agree with paragraph titled PROPOSED DIRECTIVE LANGUAGE , which references the total amounts of retroactive pays that should be received. The total amount cited ($54,500.44) is approximately $2,500.00 less than the retroactive pay amount determined by AFPC/DPANF on 25 April 2014. This disconnect appears to involve the Board Certification Pay calculation. Request reconsideration by DP2N (then DPANF) to ensure correct amounts are presented to the Board. He also notes that DP2N did not acknowledge or comment upon the case law he presented in his reconsideration request. This is a critical oversight since the case law citations represent the preponderance of the “new relevant evidence” required of the Board to even warrant reconsideration of his case. As stated in his reconsideration request, and supporting memo, he is presenting compelling case law that sufficiently refutes pivotal opinions, rationale and recommendations advanced by DP2N and upheld by the AFBCMR in previously adjudicating his case, to include: (1) a presumption against retroactive payment (repeatedly superseded by Service BCMRs over the past four decades, including since 2009 CSP-IP rollout); (2) lack of awareness being the member’s sole culpability (repeatedly proven to be neither upheld nor prohibitive to obtaining relief by Service BCMRs); (3) the member is compelled to show by a preponderance of the evidence that a Service error or an injustice “that shocks the sense of justice” (repeatedly shown by Service BCMRs that no error is required, and a lesser level of injustice is sufficient to obtain relief); (4) failure to file a timely contract (repeatedly proven not to dissuade Service BCMRs from granting relief); and (5) setting an unfavorab le precedent, regardless of its nature (repeatedly shown to be a non-issue for BCMRs in obtaining relief).

The applicant’s complete submission, with attachments, is at Exhibit I.

ADDITIONAL AIR FORCE EVALUAITON:
AFPC/DP2SSM recommends approving retroactive pay in the amount of
$57,000.40. The previous Medical Special Pays Manager calculated what the applicant would have made under the CSP plan, minus the Veterinary Professional Pay (Vet Pro Pay) under the Legacy Incentive Pay Plan. In the DP2N advisory opinion, dated 8 August 2016, the calculations missed one specific portion of the reimbursement that the candidate would be eligible to receive and based on the applicant’s rebuttal, the correct calculations for reimbursement are explained in detail in the DP2SSM advisory opinion, dated
19 August 2016.

FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974

The complete AFPC/DP2SSM evaluation is at Exhibit J.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
In an email, dated 2 September 2016, the applicant states that he is satisfied with the AFPC/DP2SSM advisory opinion.

The applicant’s complete submission is at Exhibit L.

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. We took notice of the applicant's complete submission, to include the applicant’s rebuttal, in judging the merits of the case and agree with the opinion and recommendation of AFPC/DP2SSM and adopt their rationale as the basis for our conclusion the applicant has been the victim of an injustice. Given the circumstances of this case, and the supporting documentation in the form of precedent AFBCMR and ABCMR cases in which others who were similarly situated were provided relief, we believe it to be in the interest of equity and justice to correct the record as requested. Thus, the OPR has confirmed that by making the changes as noted below, all of the applicant’s requests will be satisfied. Therefore, we recommend the applicant's 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:

a.	His effective date from Legacy pays to Consolidation of Special Pays (CSP) be changed to 1 July 2009.

b.	He receive retroactive pays totaling $57,000.40.

c.	Deduct the Legacy pay from the lump sum he will receive from CSP pay.

The following members of the Board considered AFBCMR Docket Number BC-2014-00203 in Executive Session on 15 December 2016 under the provisions of AFI 36-2603:

(b) (6), (b) (7)(C)
(b) (6), (b) (7)(C)
(b) (6), (b) (7)(C)

, Panel Chair
, Member
, Member

All members voted to correct the records as recommended. The following documentary evidence was considered:

Exhibit E.	Original ROP, dated 20 May 15, w/Exhibits A, B, C and D.
Exhibit F.	Recon DD Form 149, dated 25 Nov 15, w/atchs. Exhibit G.	Memorandum, AFPC/DP2N, dated 8 Aug 16, w/atchs. Exhibit H.	Letter, AFBCMR, dated 12 Aug 16.
Exhibit I.	Letter, Applicant’s Rebuttal, dated 15 Aug 16, w/atchs.
Exhibit J.	Memorandum, AFPC/DP2SSM, dated 19 Aug 16. Exhibit K.	Letter, AFBCMR, dated 2 Sep 16.
Exhibit L.	Email, Applicant, dated 2 Sep 16.
Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.

X

(b) (6), (b) (7) 	 (ACna)lyst, AFBCMR