RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03127 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His Aviator Continuation Pay (ACP) contract, dated 28 Oct 04, be deemed valid. APPLICANT CONTENDS THAT: The contract was approved on three separate occasions by all the proper agencies and awarding authorities. He continued to serve beyond his retirement eligibility date of 1 Jun 08 to fulfill his contractual obligations. It is an injustice to require recoupment of his ACP payments based on an error by the awarding authority. He originally signed the ACP agreement, on 30 Dec 03 for five years; he had the option to sign the agreement through 25 years of aviation service at that time; however, he chose the five year agreement since he was uncertain at the time if he would be able to serve through 25 years. After consultation with the Air National Guard (ANG) program manager, he was advised that he could amend the five year contract to 25 years the following year. He signed an amended agreement and it was accepted as valid by the ANG ACP program manager. On 30 Jul 10, the Wing Commander requested an audit of the program. In Nov or Dec 11, he was verbally informed by the Wing Commander, based on existing ACP guidance, his ACP agreement was deemed invalid and a recommendation for the recoupment of $93,750 was going to be included in the audit report. In order to exhaust all administrative remedies, he submitted a waiver request, DD Form 2789, Waiver/Remission of Indebtedness Application, in Feb 12. The Defense Finance and Accounting Services (DFAS) adjusted the debt amount to $100,000. On 11 Sep 12, the Air Force Audit Agency final audit report was released and reflected the debt as $93,750.00. DFAS reviewed the application for waiver and forwarded their recommendation to the Defense Office of Hearings and Appeals (DOHA). On 7 May 14, DOHA released their decision and agreed that he reasonably may not have been aware that he was not entitled to receive ACP payments subsequent to 2008 and acted in good faith in accepting the erroneous ACP payments. All ACP payments made during the period Mar 09 through Dec 10 were waived. However, the payment made in Dec 11 was not waived because he had been verbally informed by his Wing Commander in Nov or Dec 11 that a problem existed with his ACP contract. No acknowledgment was made about the fact that he had continued to perform his duties as a pilot during this period. DOHA recommended a unilateral recovery of $25,000.00 without providing relief for his extra time served under the very same contract. On 1 Jun 14, he submitted an appeal to the DOHA decision and received their decision to uphold the debt of $25,000. Once again, no acknowledgment was made about his extra years of service he performed under this contract. On 26 Jul 14, he received an updated bill from DFAS in the amount of $20,224.80. He is still unclear as to the exact amount being recouped. Throughout this process, the fact that he continued to serve under the terms of a contract later deemed invalid has not been acknowledged by DFAS or DOHA. While the erroneous payments can be recouped by the United States government, he cannot recoup the extra years of his life he served under this agreement. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to information provided by the applicant, on 30 Dec 03, the applicant signed an ACP agreement contract to serve five years of aviation service. On 28 Oct 04, the applicant amended his ACP agreement contract to serve 25 years of aviation service. On 31 Dec 12, the applicant was relieved from active duty and retired, effective 1 Jan 13. He was credited with 20 years, 5 months, and 24 days of active service for retirement and 24 years and 7 months for base pay. A copy of the Air Force evaluation, including the SAF Memoranda (redacted) was forwarded to the applicant on 6 Feb 15 for review and comment within 30 days (Exhibit D). 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) (now 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 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. Every year, in every retention program, some Air Force members do not meet the criteria for obtaining the bonus. Some may miss eligibility by only a few days. In all such cases those who do not meet eligibility have no claim in equity since these programs operate without regard to individual cases.” AIR FORCE EVALUATION: NGB/A1PF recommends granting the applicant’s request and concluded that he should be permitted to request, execute, and be paid for a Fiscal Year 2004 (FY04) ACP agreement effective 3 Oct 03 through 21 Dec 12 (retirement) [sic] at the rate of $25,000.00 per year. All outstanding ACP debts should be recalculated and likely nullified based on the terms of the agreement above. In Dec 03, the applicant initiated a 5 year ACP agreement effective 3 Oct 03 at $25,000 per year. In Dec 04, NGB/A1's ACP program manager authorized an amendment to his existing ACP agreement, outside of existing ANG ACP policy, which extended his service commitment to 25 Years of Aviation Service (YAS). It is the responsibility of NGB/Al to review all ACP cases to ensure they meet ANG ACP policy eligibility requirements prior to being sent to and processed by DFAS. In this case, NGB/A1 failed in its responsibility to interpret policy and misinformed the applicant of program elements, resulting in his participation in a program under a faulty contract through no fault of his own. The applicant abided by the terms of this agreement and should be paid accordingly without any monetary penalty for the error on the part of the ACP program manager. The complete A1PF evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant is pleased with the recommendation from NGB; however, he argues the two recent decisions submitted as precedence to his request do cause concern. After reviewing both cases, he notes that each of the two cases requests a retroactive contract; however, he is not requesting to retroactively enter into a contract. He signed an ACP contract in Oct 04; agreeing to serve through 25 years of aviation service, and fulfilled his obligation to this contract before it was found to be erroneous through no fault or knowledge on his part. In the Memorandum, dated 12 May 14, the Secretary of the Air Force states that ACP is an incentive program intended to encourage aviation service officers not to leave active duty. Further, she states that true incentives influence decisions about the future. He chose to extend his ACP contract based on numerous decisions affecting the future of his family. ACP provided an incentive to continue a career that would undoubtedly include more family time apart and more combat deployments. This was a very difficult family decision and the ACP provided an incentive to continue serving. In one of the cases presented for review, the Secretary of the Air Force chose to adopt the minority position. The reasons for doing so were consistent with the intent of an incentive program and decisions about the future. The Secretary also cited the minority explanation "absent sufficient evidence showing the applicant was either misled or miscounseled, harmed or the Air National Guard erred in some way that wrongly kept him from qualifying for ACP, the facts in this case do not present a unique circumstance that should compel the Board to grant his application on the grounds of an error or injustice.” As part of the package he submits, he has included numerous documents that should provide sufficient evidence to show that he was misled, miscounseled, and harmed. The Air National Guard did err on more than one occasion in its review and approval of his ACP contract. It is his sincerest hope the Secretary of the Air Force will adopt the opinion submitted by NGB/A1PF. This has been an ongoing struggle spanning many years now. It has negatively affected his family's financial stability and ability to plan for the future. His request is unique in its nature and would provide a good precedence for honoring contracts that have already been fulfilled with years of a person's life. The applicant’s complete response is at Exhibit E. 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. We took notice of the applicant's complete submission in judging the merits of the case and the majority of the Board agrees with the opinion and recommendation of the National Guard Bureau office of primary responsibility and adopts its rationale as the basis for their conclusion the applicant has been the victim of an error or injustice. In addition, the Board’s majority concluded that rendering the contract invalid was through no fault of the applicant and he fulfilled his part of the contract in good faith and should be entitled to the ACP. Therefore, the majority of the Board recommends the applicant's records be corrected to the extent indicated below. 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 issues involved. Therefore, the request for a hearing is not favorably considered. RECOMMENDATION OF THE BOARD: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that: a. On 30 December 2003, he applied for 25 years of aviation service, rather than a five-year, Aviator Continuation Pay (ACP) agreement, and competent authority approved his application at a rate of $25,000.00 annually with an effective date of 3 October 2003. b. The ACP payment issued for 22 December 2011 was valid pursuant to the agreement described in paragraph a. c. His 25 years of aviation service ACP agreement, dated 28 October 2004, be declared void and removed from his record. The following members of the Board considered AFBCMR Docket Number BC-2014-03127 in Executive Session on 7 May 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member By a majority vote, the Board voted to correct the records as recommended. ------ voted to deny, but does not wish to submit a Minority Report. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 29 Jul 14, w/atchs. Exhibit B. Pertinent Excerpts from Personnel Records. Exhibit C. Letter, NGB/A1PF, dated 4 Sep 14. Exhibit D. Letter, SAF/MRBR, dated 6 Feb 15. Exhibit E. Letter, Applicant, dated 17 Feb 15. 5