RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02306
		INDEX NUMBER:  128.04
	XXXXXXX	COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

He not be required to repay the Aviation Continuation Pay (ACP) and Tuition Assistance he received while on active duty.

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APPLICANT CONTENDS THAT:

He should still be eligible for his ACP since he transferred to a full time position with the Air National Guard (ANG) and will be performing the same duties that qualified him for ACP on active duty.  Additionally, because he is on continuum of service orders, he will not be eligible for a bonus in the ANG, eliminating any possibility of “double dipping.”

His continued education is a long term and direct benefit to the Air Force’s “Total Force” making recoupment of his tuition assistance unwarranted.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant voluntarily transferred from the Regular Air Force (RegAF) under Palace Chase to the ANG on 21 Sep 04 in the grade of major.  He is presently serving an ANG active duty tour.

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AIR FORCE EVALUATION:

AFPC/DPAOY recommends the applicant’s requests be denied.  The active duty ACP program is exclusively for active duty Air Force aviators.  As such, personnel transitioning to another branch must have the active duty service commitment (ADSC) for their ACP agreement waived by the Secretary of the Air Force (SecAF).  AFI 36-3004, “Aviator Continuation Pay,” 24 Feb 00 is the governing instruction for the ADSC waiver and is complemented by AFI     36-3207, “Separating Commissioned Officers,” 9 Jun 04.

AFI 36-3207, paragraph 1.15, “Recoupment Requirement,” states the Air Force normally requires recoupment of a portion of education assistance, special pay, or bonus money received when officers separate before completing the period of active duty they agreed to serve.  Paragraph 1.16.2 states, “If the officer voluntarily separates, the officer is subject to recoupment of a portion of education assistance, special pay, or bonus money received.  They point out that paragraph 2.2, “Recoupment,” states officers will be advised that if the SecAF approves their request for release from active duty or accepts their resignations, they may be subject to recoupment of a portion of education assistance, special pay, or bonuses received if they leave active duty before completing the period of active duty they agreed to serve.

The applicant signed his ACP agreement on 9 Apr 02 and was well aware of its terms.  Paragraph 5e of the agreement advises that voluntary retirement or separation prior to completion of the ACP ADSC is an action that would stop his ACP entitlement and the unearned portion paid to him would be considered a debt to the United States Government and would be recouped on a pro rata basis.  AFPC/DPAOY also discusses that under the Air Force’s “Force Shaping Program,” recoupment is not waived for ACP and that tuition assistance is not waived for transfers to Palace Chase.

The complete evaluation is at Exhibit C.

AFPC/DPPAT evaluated the applicant’s request for waiver of recoupment of tuition assistance he received.  They recommend denial.  They note that Title 10, US Code, Section 2007, requires an officer to remain on active duty for a period of at least two years after the completion of the training or education for which the charges are paid.

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluations, applicant states the evaluations contain several inaccuracies making their conclusion flawed.  He states the bulk of the guidance referenced deals with the Force Shaping program and that he did not leave active duty under this program.  He does not believe this guidance is relevant to the circumstances of his case.

The applicant states the ACP is not exclusive to active duty aviators in the context as it is intended.  He states there are active duty Reserve and Guard pilots who are paid the same bonuses he was receiving.  He is serving in a new category called Continuum of Service orders.  On these orders, he is not eligible for a new bonus and poses no danger of getting into a “double dip” scenario.  He opines that if he had separated without orders or left the service altogether, there would be no doubt recoupment is warranted.  However, he is still on active duty orders flying F-16s, just not performing some of the duties he performed before.  He notes the ACP agreement states ACP “may” be recouped and is therefore not required as indicated in the evaluation.

In regards to the requirement to serve at least two years on active duty for tuition assistance received, he will complete this requirement mid-way through his current year of active duty orders.  He believes the circumstances of his transition to his current position and the fact he is still on active duty and filling a critical position in support of ONE tasking make his case a suitable one for waiver of recoupment.

Applicant’s complete response, with attachment, is at Exhibit F.

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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 error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  While the discussion on the “Force Shaping Program” may not be applicable to the applicant’s specific circumstance, the examples of recoupment pointed out illustrate that recoupment is the norm under circumstances similar to the applicant’s.  Additionally, we note the applicant’s decision to change components was voluntary.  In our view of the applicable directives referenced in this application, we believe one would most likely be led to conclude that their ACP payments and tuition assistance would be recouped rather than not.  We further conclude the applicant was sufficiently placed on notice of the possible consequences of his voluntary decision to transfer to the Air National Guard and is not being treated differently than anyone else similarly situated.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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.

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The following members of the Board considered Docket Number BC-2004-02306 in Executive Session on 2 February 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Jul 04.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPAOY, dated 11 Aug 04.
    Exhibit D.  Memorandum, AFPC/DPPAT, dated 7 Sep 04.
    Exhibit E.  Letter, SAF/MRBR, dated 17 Sep 04.
    Exhibit F.  Letter, Applicant, dated 10 Oct 04.