RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04772 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to show one additional month of Operational Flying Duty Accumulator (OFDA) be added to his total of 119 months, resulting in 120 months of OFDA and continued entitlement to flight pay and aviator continuation pay (ACP). _________________________________________________________________ APPLICANT CONTENDS THAT: He was unjustly docked for the period 1 Apr 96 to 16 May 96 and not able to fly during that period because of squadron policy, weather, and maintenance. Additionally, his squadron did not fly him for 34 days prior to being ordered to a three-month non-flying temporary duty in Saudi Arabia. As a result, he was over the limit to lose flying credit and he was docked a full month of credit. If he does not reach 120 months of flying time he will stop receiving his flight pay and will have to repay $20,000 in aviator continuation pay (ACP) that he has already received. No one thought of these possible consequences at the time that he was left off the flying schedule prior to deploying. He has exhausted his administrative remedies most recently by applying for a one-month waiver of the 120 month requirement, but his request was denied because he had accepted a non-flying assignment. Being one month shy of the required 120 months will have a dramatic financial impact on his family and it is his hope that the Board will judge that losing all flight benefits because he has 119 months instead of 120 months of flying, under the circumstances, would be unjust. In support of his appeal, the applicant provides a personal statement and copies of his Duty History Information, deployment orders and associated travel voucher, a Report of Individual Flying Time, a letter of support from a former fellow pilot, an Aviation Service Audit Worksheet, a Flying History Report, an Entitlement Status Letter informing him of his impending loss of flight pay, and an email from the National Guard Bureau (NGB) office of primary responsibility (OPR) informing him of the denial of his one-month waiver request. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: According to the applicant’s military personnel records, he currently serves on extended active duty (EAD) with the Air National Guard (ANG) in the grade of lieutenant colonel (O-5). In accordance with Title 37, United States Code (USC), Section 301a and Air Force Instruction (AFI) 36-2110, Assignments, it is Air Force policy that as many members as possible complete at least 10 years (120 months) of operational flying by their 18th year of aviation service (YAS). According to information provided by the applicant, he attained 119 months of operational flying during the period ending 14 Nov 06. According to the applicant’s military personnel records, he commenced a period of voluntary extended active duty, in a non- flying position, on 1 Oct 07 for a period of 12 months. His active duty orders were subsequently amended repeatedly, resulting in a voluntary extension of his active duty tour during which he was voluntarily reassigned to another non-flying position where his date of separation (DOS) was established as 31 May 16. On 4 Oct 11, the applicant was notified that his entitlement to ACIP was projected to change from “continuous entitlement” to “terminated” based on his reaching 18 YAS. On 17 Nov 11, the applicant’s request for a waiver of the 120 months OFDA requirement was denied. In accordance with AFI 11- 401, Aviation Management, paragraph 2.6.5, individuals who voluntarily turn down a flying opportunity or elect to move to a non-flying position which would preclude the possibility of meeting OFDA requirements are not eligible for OFDA waivers. The remaining relevant facts pertaining to this application are contained in the letter prepared by the Air Force office of primary responsibility (OPR) which is at Exhibit C. _________________________________________________________________ AIR FORCE EVALUATION: HQ USAF/A30-AI recommends denial, indicating there is no evidence of an error or injustice. While the applicant claims he lost one month of flying credit in 1996 due to squadron policy, weather, and maintenance, granting his request would be contrary to the provisions of the Aviation Career Improvement Act (ACIA) of 1989 which authorized the Secretary of the Air Force to waive OFDS requirements based on the needs of the service, for rated officers unable to meet flying gate requirements due to reasons beyond their control. In Nov 06, the applicant, while filling a part time ANG tanker pilot position, volunteered for a 10-month non- flying assignment to teach strategy at the School of Advanced Air and Space Studies (SAASS), which placed him on fulltime ANG duty. His next assignment was as a professor of Strategic Studies – another non-flying position at the same AFB. He accepted another non-flying assignment to the Pentagon as Air Legislative Liaison staff where he is currently stationed. The applicant has not provided evidence of an error or injustice that prevented him from meeting established requirements for continuous entitlement to flight pay or from meeting the OFDA requirements within the time period specified by public law to do so. He was never denied the opportunity to seek another flying assignment and granting his request, thus entitling him to flight pay through 22 YAS, is contrary to public law established in the ACIA of 1989. A30-AI’s complete evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He notes the opinions’ statement that he has not shown he was the victim of an error or injustice and accepts that he could have re- arranged his career to take less advantageous positions in the Air Force. But this assumes he knew ahead of time how things would play out over the ensuing years. The applicant contends the advisory opinion does not address the basis of his claim which is that he was denied on month of OFDA credit due to factors which fair and proper administration of the flying program would not allow for. He faces a heavy penalty for an oversight in flight management by captains and majors in his squadron years ago. He is not asking for an exception to the statute – which he knows is impossible - but he does ask for an exception to an Air Force Instruction due to error or injustice, which would then qualify him under the statute. The applicant’s complete response is at Exhibit D. _________________________________________________________________ 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. The applicant contends that he was precluded from being credited for a month of operational flying in 1996, which resulted in his failure to attain the requisite 120 months of operational flying to continue to be eligible for flight pay and ACIP beyond 2012. While the applicant provides a statement from a fellow pilot supporting his contention that squadron policies, weather, and maintenance issues precluded him from being credited for a month of operational flying duty in 1996, we are not convinced that his failure to attain the requisite 120 months of operational flying duty for his continued entitlement to flight pay and ACP was due to circumstances that were beyond his control. In this respect, we note the comments of the Air Force OPR indicating the applicant volunteered to perform extended active duty where he was assigned to a series of non-flying positions and continues to serve on EAD to this day. In response, the applicant concedes that had he known how things would play out over the ensuing years, he could have taken less desirable positions, thus preserving his entitlement to flight pay and ACP beyond 18 years of service. While the position the applicant now finds himself in is regrettable, we are not persuaded that it is due to an error on part of the Air Force. Even accepting that he lost a month or more of flying credit, in our view, he did not exercise reasonable diligence in taking action to meet the requirement for continuation of his entitlement to flight pay and aviation continuation pay. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 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(s) 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-2011-04772 in Executive Session on 24 May 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 23 Nov 11, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AF/A30-AI, dated 10 Jan 12. Exhibit C. Letter, SAF/MRBR, dated 24 Feb 12. Exhibit D. Letter, Applicant, dated 15 Mar 12.