RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2015-04332

	COUNSEL:  NONE 

	HEARING: NO 

APPLICANT REQUESTS THAT:

The Air Force reimburse him $5,000.00 of the unearned portion of Aviator Retention Pay (ARP), the Air Force recouped from him.  

APPLICANT CONTENDS THAT:

On 31 Dec 14, he was involuntarily separated due to non-selection for promotion.  AFI 36-3004, Aviator Continuation Pay (ACP) Program, Table 1.1., Rule 2, says: “If the reason for failure to complete active duty aviation service is Involuntary (see Note 2) and the effective date of the disqualification or separation is before the next anniversary payment then the next scheduled payment is not paid and future anniversary payments are not paid and any unearned portion of the bonus already paid is not recouped.”  Note 2 says, “Rule 2 includes…separation due to promotion non-selection when not offered continuation…”  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant served in the Regular Air Force in the grade of Major during the period of time of the matter under review. 

On 13 Mar 12, the applicant entered into an FY12 Aviator Continuation Pay (ACP) Agreement to receive $25,000 per year for five years, and incurred an active duty service commitment through 12 Mar 17.  

 On 31 Dec 14, the applicant was discharged due to non-selection for promotion to the grade of lieutenant colonel.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DP2SSM recommends granting the application.  The applicant entered into a Fiscal Year 2012 (FY12) five-year Aviator Continuation Pay (now called Aviator Retention Pay) Agreement at $25,000 a year in annual installments.  The agreement effective date was 13 Mar 12, with an active duty service commitment (ADSC) end date of 12 Mar 17.  He received his installments for FY12, FY13 and FY14.  Due to Office of Secretary of Defense (OSD) guidance, upon his separation, separation program designator (SPD) Code of JGB was used on DD Form 214, Certificate of Release or Discharge from Active Duty, which means Non-Selection, Permanent Promotion.  Based on the SPD Code JGB, the applicant was required to repay the unearned portion of the bonus, a total of $5,000.00.  

There is conflict between the guidance in AFI 36-3004 and the OSD SPD Code guidance.  Additionally, there is no alternate SPD Code for non-selection for promotion.  The only avenue available to the applicant was to ask the SECAF to waive the recoupment of unearned ARP monies.  Title 37 U.S.C. § 303a (e) (1) (A) - Special pay: general provisions gives the SECAF the latitude to forgive debts that would be contrary to a personnel policy or management objective.  

Recommend waiving the debt under Title 37 U.S.C. § 303a (e) (1) (A) - Special pay: general provisions and DFAS reimburse member in the amount of $5,000.00 for the unearned ARP monies recouped upon his involuntary separation.

The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 28 Mar 18 for comment (Exhibit D), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion the applicant is the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SSM and finds a preponderance of the evidence substantiates the applicant’s contentions.  Therefore, the Board recommends the applicant’s records be corrected as indicated below.

THE BOARD RECOMMENDS:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show on 31 December 2014, the Secretary determined the APPLICANT was not obligated to reimburse the United States Government for Aviator Retention Pay in the amount of $5,000.00 under Title 37 U.S.C. § 303a (e) (1) (A).

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2015-04332 in Executive Session on 23 May 18:

, Panel Chair
, Member
, Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, dated 18 May 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSM, dated 27 Oct 16.
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 28 Mar 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings for Docket Number BC-2015-04332, as required by AFI 36-2603, paragraph 4.11.9.