RECORD OF PROCEEDINGS 

IN THE MATTER OF: 	DOCKET NUMBER: BC-2021-00091 

	COUNSEL: YES 

 							HEARING REQUESTED: YES 

APPLICANT’S REQUEST 

He be paid Aviator Continuation Pay (ACP) and Flight Pay (Aviation Incentive Pay (AvIP)) effective at the conclusion of his previous agreement through his retirement date of 30 Sep17. 
 
APPLICANT’S CONTENTIONS 

He previously signed up for a FY11 ACP for four years from 1 Jul 11 to 30 Jun 15 at an annual amount of $25,000.  He was initially released from Active Guard Reserve (AGR) status prior to the conclusion of his FY11 agreement, and therefore, he was ineligible to sign up for a subsequent FY15 ACP agreement.  In a previous case (BC-2015-00923-2), the AFBCMR directed he remain in his AGR status until 30 Sep 17 and be retired on active duty effective 1 Oct 17.  As a result, he may have been eligible for the FY15 ARP on 1 Jul 15.In a Court of Federal Claims case, government counsel indicated the Air Force and the Defense Finance Accounting Service (DFAS) do not oppose the payments, but want authorization from the Board to make the additional payments due to the expiration of his military flight physical and there were no ACP agreements in place after he was removed from the AGR, which was impossible to complete due to the erroneous removal from the AGR and subsequent placement on the Retired Reserve list. The applicant’s complete submission is at Exhibit A. 

STATEMENT OF FACTS

The applicant is a retired Air Force lieutenant colonel (O-5). 

On 30 Sep 13, according to DD Form 214, Certificate of Release or Discharge from Active Duty, the applicant was relieved from active duty and transferred to the Air National Guard (ANG). 

On 27 Jun 15, according to an Aeronautical Order, dated 15 Jul 15, the applicant completed a flight physical and his aviation service was re-instated. 

On 1 Apr 16, according to Reserve Order XX-XXXX, the applicant was placed on the Retired Reserve List.  On this same date, according to an Aeronautical Order, dated 8 Jun 16, the applicant’s aviation service was terminated due to retirement Reserve Order XX-XXXX. 

On 13 May 19, the AFBCMR corrected the applicant’s records and directed that he remain in AGR status until 30 Sep 17, that he was approved for an extension of his Mandatory Separation Date (MSD) until 1 Oct 17, and be retired on the same date. 

On 5 Nov 19, according to Reserve Order XX-XXXX, the applicant’s retirement order (Reserve Order EK-3884) was rescinded. 

On 14 Nov 19, according to Reserve Order XX-XXXX, the applicant was retired effective 1 Oct 17 and a new DD Form 214 was accomplished. 

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and E. 

AIR FORCE EVALUATION

NGB/A1P recommends granting the application.  Based on the documentation provided by the applicant and analysis of the facts, there is evidence of an error or injustice in that the applicant was unable to sign up for a FY15 ARP due to circumstances outside of his control.  The applicant’s eligibility to sign up for ARP is contingent on the final determination and verification on the status of his qualification for operational flying duty, eligibility to receive AvIP, and the status of his security clearance during the period in question.  If it is determined that he met all eligibility factors on 1 Jul 15, which immediately follows the conclusion of his previous FY11 ACP agreement and it is the earliest date he would be eligible for, then he can sign up for the FY15 ARP at the annual rate of $15,000 from 1 Jul 15 until 30 Sep 17 for a total of two (2) years and three (3) 4onths.  Based on the circumstance of this case, NGB/A1PF is unable to verify these three eligibility factors and will need final determination from the appropriate authority. 
 
The FY15 ARP Implementation Policy, Section 4, addresses the issue of annual bonus amount.  It is noted that a member may receive the $25,000 annual rate under Option 1, only once during their career; otherwise, the member would only be eligible for Option 2 at the $15,000 annual rate.  Since the applicant had previously received the $25,000 bonus from his FY11 ACP Agreement, he would only be eligible for Option 2 at $15,000. 

The complete advisory opinion is at Exhibit C. 

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the Air Force evaluation to the applicant on 6 Apr 21 for comment (Exhibit D), but has received no response. 

ADDITIONAL AIR FORCE EVALUATION 

NGB/A2/3/6/10OS memorandum indicates a medical certification is required for entitlement to AvIP.  The applicant had two instances within the time period of entitlement to AvIP where the certification was lost and his aviation service history correctly reflects this.  ANGRC/SGP was able to confirm that the applicant’s last flight physical was accomplished and his DD Form 1042 was effective from 27 Jun 15 and expired 23 Sep 16.  The expiration date is IAW AFI 44-170, Preventative Health Assessment, this certification remained valid for 455 days.  On the 456th day following this clearance, the applicant no longer had the required medical certification required for entitlement to AvIP, which requires a final stop action effective 23 Sep 16.

DATES  	ENTITLED TO AvIP	 	 REASON FOR ENTITLEMENT CHANGE 	
01 Oct 2013-21 Oct 2013  	YES 		  	
22 Oct 2013-18 Nov 2013  	NO 		LOSS OF MEDICAL CERTIFICATION 	
19 Nov 2013-16 Feb 2015  	YES 	REGAINED MEDICAL CERTIFICATION 	
17 Feb 2015-26 Jun 2015  	NO 	LOSS OF MEDICAL CERTIFICATION 	
27 Jun 2015-24 Sep 2016 	YES 	REGAINED MEDICAL CERTIFICATION 	
23-Sep-16 	NO 	LOSS OF MEDICAL CERTIFICATION 	
 
The complete advisory opinion is at Exhibit E. 

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION 

The Board sent a copy of the Air Force evaluation to the applicant on 15 Apr 21 for comment (Exhibit F), and the applicant replied on 30 Apr 21.  In his response, the applicant contended that the NGB/A1P advisory for ARP is favorable with his only objection is that granting relief is contingent on if he met all eligibility factors as outlined in the FY15 ARP Implementation Policy.  This is objectionable because it leaves open the possibility of additional litigation and NGB should identify any unmet condition.  Obviously, some conditions cannot be met due to the procedural posture of the case and the retroactive relief that was granted by the AFBCMR in its prior decision.  

The NGB/A2/3/6/10OS advisory for AvIP (flight pay), does not address the equitable issue now presented to the Board.  The advisory notes three periods when the applicant’s medical certificate had expired.  The only one at issue is for the last period when he was not eligible for an Air Force medical certificate because he was retired.  With his response, the applicant provided Federal Aviation Administration (FAA) Form 8500-9, Medical Certificate First Class, dated 16 Aug 16 and 17 Feb  17 indicating he met medical standards prescribed in part 67, Federal Aviation Regulations. 

The applicant’s complete response is at Exhibit G. 

FINDINGS AND CONCLUSION 

1.	The application was timely filed. 

2.	The applicant exhausted all available non-judicial relief before applying to the Board. 

3.	After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  The Board concurs with the rationale and recommendation of NGB/A1P and finds a preponderance of the evidence substantiates the applicant’s contentions.  While the Board notes the NGB/A2/3/6/10OS memorandum indicates the applicant was no longer eligible for AvIP effective on 23 Sep 16 due to no longer having the medical certification required for entitlement to AvIP, the Board finds it more likely than not, that if the applicant had not been erroneously retired, he would have attained a medical certification for the period in question and been eligible for AvIP.  Furthermore, the applicant provided copies of medical certifications from the FAA indicating he met medical standards to serve as a pilot during the period in question.  Therefore, the Board recommends correcting the applicant’s records as indicated below. 
 
4.	The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved. 

RECOMMENDATION 

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show: 

a.	He was approved for FY15 ARP agreement from 1 Jul 15 through 30 Sep 17 at the Option 2 level with an annual rate of $15,000. 
 
b.	He was eligible for AvIP from 1 Apr 16 through 30 Sep 17 for a total amount of $9,223.32. 

CERTIFICATION 

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2021-00091 in Executive Session on 17 Aug 21: 
 
Panel Chair 
Panel Member 
Panel Member 
 
All members voted to correct the record.  The panel considered the following: 
 
Exhibit A: Application, DD Form 149, w/atchs, dated 25 Jan 21. 
Exhibit B: Documentary evidence, including relevant excerpts from official records. 
Exhibit C: Advisory opinion, NGB/A1P, w/atchs, dated 1 Apr 21. 
Exhibit D: Notification of advisory, SAF/MRBC to applicant, dated 6 Apr 21. 
Exhibit E: Advisory opinion, NGB/A2/3/6/10OS, w/atch, dated 21 Jul 20. 
Exhibit F: Notification of advisory, SAF/MRBC to applicant, dated 15 Apr 21. 
Exhibit G: Applicant’s response, dated 30 Apr 21. 
 
Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.