RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04089 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: He be declared eligible for the Fiscal Year 2012 (FY12) Aviator Continuation Pay (ACP) Program as of 1 Oct 11 and allowed to execute a two-year ACP agreement entitling him to $15,000.00 per year for two years. ________________________________________________________________ APPLICANT CONTENDS THAT: The delayed release of the Air National Guard (ANG) FY12 ACP policy guidance resulted in him not being allowed to renew his ACP agreement in time to qualify for a two-year agreement. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the Air National Guard in the grade of lieutenant colonel (O-5). On 10 Sep 11, the applicant was ordered to active duty from 1 Oct 09 through 30 Sep 13. This period authorized him to enter into a two-year FY12 ACP agreement; however, the release of the new FY12 policy was delayed until 24 Feb 12. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force office of primary responsibility and SAF/MRB Legal Advisor and are attached at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PF recommends granting the applicant’s request to be declared eligible for the FY12 ACP Program indicating he met all eligibility requirements and the policy delay was through no fault of the applicant. According to the ANG FY12 ACP Implementation Policy, paragraph 1.7.3, ACP must be accepted within 30 days of initial eligibility, unless affected by unusual circumstances. Due to the delay in the release of the new FY12 ACP policy, the applicant no longer had the minimum agreement period of two years remaining on his order in order to be able to execute a two-year agreement. A complete copy of the NGB/A1PF evaluation is at Exhibit C. The SAF/MRB Legal Advisor states that the Board has the authority to correct the record to show acceptance by the Secretary of a valid ACP contract signed by the applicant on a date that would capture the whole period of eligibility; however, the Board should be very cautious about granting such applications. To warrant relief, the applicant must prove by sufficient evidence that he or she is the victim of a serious injustice not shared by other, similarly situated officers. Because it is impossible to execute incentives for past conduct, backdating ACP agreements violates the intent of Congress in authorizing ACP payments in the first place. However, due to the almost perpetual expectation that ACP will continue to be provided to Air Force pilots, many officers may develop an erroneous expectation that ACP is actually an entitlement versus an incentive. Conceivably, the Board may find this belief sympathetic and grant relief based on injustice, if that belief led to an active service commitment. Every case must be considered on its own facts and these facts require deliberation by the AFBCMR panels. As in all cases, the burden of proof remains with the applicant. A complete copy of the SAF/MRB evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant disagrees that an applicant must prove a serious injustice has occurred and that it is not shared by other, similarly situated officers. He points out that an indication from his ACP coordinator that he would be eligible for the FY12 ACP factored into his decision to accept a two-year Active Guard Reserve (AGR) order. The delays in the release of the FY12 ACP policy were beyond his control and his case specific information qualifies him for relief. He requested the ACP as soon as he initially became eligible on 1 Oct 11. Five months later the National Defense Authorization Act (NDAA) authorized the FY12 ACP program in February 2012. He was not able to apply in February because his AGR order was being amended from “temporary status” to “permanent” status. The organizations affected by this change in status had to work out a process to manage and coordinate the changes. Additionally, there was a significant delay caused by limitations in the ANG Reserve Order Writing System (AROWS). Nevertheless, throughout all of these changes, he was already on a long-term continuous AGR order, eligible for the FY12 ACP prior to the amendment, eligible after the order was issued, and the amendment extended his commitment dates. A complete copy of the applicant’s rebuttal is at Exhibit F. ________________________________________________________________ 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. The applicant contends the delayed release of the Air National Guard (ANG) FY12 ACP policy unfairly precluded him from being able to execute a two-year ACP agreement even though he was otherwise qualified. After a thorough review of the evidence of record and the applicant’s complete submission, including his rebuttal response, we believe it is in the interest of justice to recommend granting the requested relief. While we note the comments of the SAF/MRB Legal Advisor indicating an applicant must prove by sufficient evidence that he or she is the victim of a serious injustice not shared by other, similarly situated officers, it is the opinion of the Board, that because the applicant signed the new ACP agreement as soon as the renewal became available, we find it reasonable to conclude that the applicant anticipated receiving the incentives outlined in the agreement. In this respect, we took notice of the applicant's complete submission in judging the merits of the case and agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has been the victim of an error or injustice. Therefore, we recommend his 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 competent authority approved his request for an Aviator Continuation Pay (ACP) contract for the period 1 October 2011 through 30 September 2013 at a rate of $15,000 annually, under the Air National Guard Fiscal Year 2012 ACP program. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-04089 in Executive Session on 13 Jun 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-04089 was considered: Exhibit A. DD Form 149, dated 20 Aug 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, NGB/A1PF, dated 23 Oct 12. Exhibit D. Letter, SAF/MRBR, dated 1 Nov 12. Exhibit E. Letter, AFBCMR, dated 23 Apr 13, w/atch. Exhibit F. Letter, Applicant, dated 21 May 13, w/atchs.