RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-04168 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: Current DOD, AF, and ANG policies regarding military end strength numbers and ACP unintentionally fail to reward ANG aviators who are prevented from signing one-year active duty orders in FY08 and FY09. Due to DOD end strength numbers, the end date on these orders were initially limited to 1 Sep 09 and were subsequently extended to 30 Sep 09 later in the year, for those aviators whose 1,095 day rule was waived. However, ANG ACP policy has always been to exclude those aviators not on one continuous order for at least one year. Those aviators limited by the 1,095 day rule do not meet that requirement or the requirement to apply for ACP within one month of the effective date of their orders. The intent of ACP is to reward aviators who volunteer for at least one-year active duty tours. Aviators whose orders are limited by the 1,095 day rule do not meet the ANG requirements to participate in ACP through no fault of their own. In order to fairly fulfill the intent of the ACP policy, a corrective action needs to be implemented to allow those aviators who would have received one year orders but were initially limited to 11 month orders due to the 1,095 day rule. Their orders were later extended to one year after receiving a 1,095 day rule waiver. In support of his appeal, the applicant provides a personal statement and 12 attachments that include excerpts from the United States Code (U.S.C.) and National Defense Authorization Acts (NDAA), SAF/MR end strength messages, ANG FY09 ACP Implementation Policy, his active duty orders, ACP contract, and his Aeronautical Order. 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 New Hampshire ANG (NHANG) in the grade of lieutenant colonel and has an Aeronautical Service Date (ASD) of 16 Dec 87, yielding approximately 22 Years of Aviation Service (YAS). 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 applicant’s FY09 orders were amended several times during the year. _________________________________________________________________ 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 has been in force since FY04 and has been applied consistently to all ANG aviators since that time. In this regard, no evidence has been provided that indicates he has been treated any differently than others who were similarly situated. It is our view that the mere intent of an applicant to serve a full, uninterrupted year does not meet the burden of showing an error or injustice. It appears the applicant was aware of the 1,095 day rule and what impact it would have on his ACP eligibility – waiver notwithstanding. Additionally, we find that the incidence of a law or policy that impacts another law or policy resulting in an undesirable outcome does not necessarily produce an error or injustice. Absent evidence showing he was either misled or miscounseled or that the Air National Guard erred in some way that wrongly disqualified him from ACP participation, we can find no error or injustice in this case. As an aside, it appears the applicant’s orders had been modified during the 11 months he was on duty prior to applying for a waiver which would have disqualified him from the FY09 ACP program regardless of whether or not the 1,095 day rule applied to him. 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-2009-04168 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