RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2009-04137
			COUNSEL:  NONE
			HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show his eligibility for Fiscal Year 
2009 (FY09) Air National Guard (ANG) Aviator Continuation Pay 
(ACP) program.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He signed an ACP contract in good faith to serve for an entire 
year.  It was only because of the 1,095 day rule that his orders 
were not cut for an entire year.  Even though his orders were 
amended after a 1,095-day waiver was approved, he was still not 
eligible.  The injustice in this case is that he served the entire 
year commitment, as other ACP recipients did, but he was not paid 
due to legal limitations imposed on the ACP program by a separate 
and distinct law; the 1,095-day rule.  

In support of his appeal, the applicant provides copies of his 
active duty orders, his FY09 ACP agreement, and pertinent 
electronic communications. 

Applicant’s complete submission is attached.

_________________________________________________________________

STATEMENT OF FACTS:

ANG personnel are limited to serving cumulative periods of active 
duty and full-time National Guard duty not to exceed 1,095 days in 
the previous 1,460 days.  The 1,095 day rule can be waived and the 
orders of those ANG aviators who will exceed the 1,095 day rule 
during a tour of active duty are generally limited to less than a 
year until such time as they have been approved for a waiver.  The 
1,095 day rule limits otherwise willing aviators to less than a 
continuous year of service thereby, making them ineligible to 
participate in the ANG ACP program for that particular year.

Applicant is currently serving in with the Maine ANG (MEANG) in 
the grade of lieutenant colonel and has an Aeronautical Service 
Date (ASD) of 17 Jul 87, yielding approximately 21 Years of 
Aviation Service (YAS) and TAFMS of just over 13 years for FY09 
eligibility.

ANG eligibility requirements for the FY09 ACP program required 
aviators to be on active duty orders cut for one continuous, 
uninterrupted year.  Original orders issued for periods of duty of 
less than one year disqualified aviators from ACP participation.  
Further, orders issued for periods of less than one year that were 
later amended or modified to total a year of service, were also 
not acceptable.  Additional requirements include that the aviator 
have less than 19 years TAFMS, have less than 24 YAS at 
application, and make application for ACP within 30 days of 
beginning their tour.  

_________________________________________________________________

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 took notice 
of the applicant's complete submission in judging the merits of 
the case; however, we note that, as an incentive-based program 
(as opposed to an entitlement), the ACP requirement that 
aviators perform active duty on orders that reflect one 
continuous, uninterrupted year is a valid condition of 
eligibility.  Regardless of his intent, the applicant was simply 
not able to meet the ANG FY09 ACP requirements and accordingly 
is not eligible to participate in the FY09 ACP program.  It 
appears the applicant was aware of the 1,095 day rule and what 
impact it would have on his ACP eligibility – waiver 
notwithstanding.  Consequently, we find that the incidence of a 
law or policy that impacts another that results in a negative 
outcome does not necessarily produce an error or injustice.  
Moreover, there has been no showing that he has been treated any 
differently than others who were similarly situated.  Absent 
evidence showing he was either misled or miscounseled or that 
the Air National Guard erred in some way that wrongly kept him 
from qualifying for ACP, we can find no error or injustice in 
this case.  Therefore, 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 Docket Number 
BC-2009-04137 in Executive Session on 2 September 2010, under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

    Exhibit: DD Form 149, dated, w/atchs.




                                   
                                   Panel Chair