RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03608 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His Aviator Retention Pay (ARP) agreement eligibility effective date be 15 May 13 instead of 7 Jun 13. ________________________________________________________________ APPLICANT CONTENDS THAT: His opportunity to apply for the $25,000 yearly bonus was void due to the delayed release date of the annual ARP agreement policy. Had the agreement been released in the standard time frame he would not be penalized $40,000 over the next 4 years. In support of his request, he provides copies of his ARP Agreement Statement of Understanding (SOU), Extended Active Duty (EAD) order and various other documents associated with his request. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: According to National Guard Bureau (NGB) Special Order AA- 0000457 dated 15 May 13, the applicant was placed on statutory EAD tour for the period of 15 May 13 to 14 May 17. The applicant’s ARP agreement is for $15,000 per year for 2 to 4 year active duty tour effective 7 Jun 13 to 14 May 17. On 12 May 14, the Secretary of the Air Force (SecAF) denied relief to two applicants making similar arguments to the AFBCMR. Her memorandum stated, in part, that “Aviator Continuation Pay (ACP) is an incentive program, not an entitlement. The intent of Congress (and therefore the purpose of the statute) was to provide an incentive that would encourage aviation service officers not to leave active duty. Backdating an ACP agreement essentially offers an incentive to an officer for a decision he has already made and provides a retention bonus for a period of service already served. Doing so would depart from the purpose of the statute. Furthermore, because the decision whether or not to offer ACP in any given year is entirely at the discretion of the Secretary, any delay in approval of the program for a given year cannot become the basis for a retroactive recovery.” The complete SecAF decision is at Exhibit F. ________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PF recommends denial. The applicant’s request for ARP eligibility is incomplete as he did not provide a signed ARP agreement (all signatures, initials, blocks completed), ARP coordinator spreadsheet showing all required data signed by the ARP coordinator and documentation explaining why the Aviation Service Date (ASD) falls after the Undergraduate Flying Training (UFT) graduation date. A1PF advised they would reassess the case should the applicant provide the required documents. The complete A1PF evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: In further support of his request, the applicant provides a letter of support from the Air National Guard Readiness Center (ANGRC) Commander, completed SOU and various other documents associated with his request. The complete response, with attachments, is at Exhibit D. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: NGB/A1PF recommends approval. Upon further review of the documents provided, A1PF concludes he should be permitted to request, execute and be paid for a FY13 ARP agreement effective for the period of 15 May 13 through 14 May 17 at $25,000 per year. According to Special Order AA-0000457 dated 15 May 13, he was ordered to active duty from 15 May 13 to 14 May 17 and this period would have allowed him to enter into an FY13 ARP Agreement for $25,000 per year for 4 year period. However, the FY13 ARP policy was delayed until 7 Jun 13 which prevented him from applying at the beginning of his eligibility period. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: On 27 Jun 14, the copies of the SecAF decision and the Air Force evaluation were forwarded to the applicant for review and comment within 30 days (Exhibit G). As of this date, this office has not received a response. ________________________________________________________________ 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 note the Air Force Office of Primary Responsibility (OPR) recommends approval; however, their recommendation preceded and was made without the knowledge that two similar cases had been denied. The FY13 ARP program was not announced as of 15 May 13; therefore, the applicant could not have applied for ARP at $25,000 per year for 4 year period effective 15 May 13. The evidence of record reflects the applicant’s ARP agreement was for payment of $15,000 per year for 2 to 4 year active duty tour effective on 7 Jun 13 for the period of 7 Jun 13 to 14 May 17. As stated in the SecAF decision, in all retention programs there are some who meet the eligibility criteria and others who miss eligibility by only a few days. These programs operate without regard to individual cases and are equitable for all similarly situated individuals. Thus, changing the applicant’s records as requested would provide him a benefit not afforded to others similarly situated. We note that ARP is an incentive program, not an entitlement. The intent of Congress (and therefore the purpose of the statute) was to provide an incentive that would encourage aviation service officers not to leave active duty. True incentives influence decisions about the future. Backdating an ARP agreement essentially offers an incentive to an officer for a decision he has already made and provides a retention bonus for a period of service already served. Doing so would depart from the purpose of the statute. Furthermore, because the decision whether or not to offer ARP in any given year is entirely at the discretion of the Secretary, any delay in approval of the program for a given year cannot become the basis for a retroactive recovery. Therefore, in the interest of justice and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ 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. ________________________________________________________________ The following members of the Board considered AFBCMR BC-2013- 03608 in Executive Session on 29 Jul and 29 Aug 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2013-03608: Exhibit A. DD Form 149, dated 25 Jul 13, w/atchs. Exhibit B. Letter, NGB/A1PF, dated 9 Sep 13. Exhibit C. Letter, SAF/MRBR, dated 15 Oct 13. Exhibit D. Letter, Applicant, dated 4 Mar 14, w/atchs. Exhibit E. Letter, NGB/A1PF, dated 29 Apr 14. Exhibit F. Letter, SecAF, dated 12 May 14. Exhibit G. Letter, SAF/MRBR, dated 27 Jun 14.