RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04161 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His initial eligibility and start date for Aviator Continuation Pay (ACP) be 1 October 2011. ________________________________________________________________ APPLICANT CONTENDS THAT: The delayed release of the Air National Guard (ANG) Fiscal Year ACP policy guidance resulted in him not being allowed to renew his ACP agreement in time to qualify for a three-year agreement. In support of his request, the applicant provides a copy of his FY 2012 Pilot ACP Agreement Statement of Understanding and numerous other documents in support of his request. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 14 September 2011, the applicant was ordered to active duty from 1 October 2011 through 30 September 2014. This period authorized him to enter into a three-year FY 2012 ACP agreement; however, the release of the new FY 2012 policy was delayed until 24 February 2012. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force office of primary responsibility and SAF/MRB Legal Advisor attached at Exhibits B and D. ________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PF recommends approval. A1PF states that based upon the published policy guidance, the fact that the applicant met all eligibility requirements and that the policy delay was through no fault of his own, they recommend approval of the applicant’s requests. The complete A1PF evaluation is at Exhibit B. The SAF/MRB Legal Advisor states that the Board has the authority to correct the record to show acceptance by the Secretary of a valid ACP contract signed by the applicant on a date that would capture the whole period of eligibility; however, the Board should be very cautious about granting such applications. To warrant relief, the applicant must prove by sufficient evidence that he or she is the victim of a serious injustice not shared by other, similarly situated officers. Because it is impossible to execute incentives for past conduct, backdating ACP agreements violates the intent of Congress in authorizing ACP payments in the first place. However, due to the almost perpetual expectation that ACP will continue to be provided to Air Force pilots, many officers may develop an erroneous expectation that ACP is actually an entitlement versus an incentive. Conceivably, the Board may find this belief sympathetic and grant relief based on injustice, if that belief led to an active service commitment. Every case must be considered on its own facts and these facts require deliberation by the AFBCMR panels. As in all cases, the burden of proof remains with the applicant. The complete A1PF evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 1 October 2012 and 28 May 2013, copies of the Air Force evaluation and SAF/MRB Legal Advisory were respectively forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibits C and 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. The applicant contends that the delayed release of the ANG FY 2012 ACP policy unfairly precluded him from being able to execute a three-year ACP agreement even though he was otherwise qualified. After a thorough review of the evidence of record and the applicant’s complete submission, we believe it is in the interest of justice to recommend granting the requested relief. While we note the comments of the SAF/MRB Legal Advisor indicating an applicant must prove by sufficient evidence that he or she is the victim of a serious injustice not shared by other, similarly situated officers, it is the opinion of the Board, that because the applicant signed the new ACP agreement as soon as the renewal became available, we find it reasonable to conclude that he anticipated receiving the incentives outlined in the agreement. Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has been the victim of an error or injustice. Accordingly, we recommend his records be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that competent authority approved his request for an Aviator Continuation Pay (ACP) contract for the period 1 October 2011 through 30 September 2014 at a rate of $15,000 annually, under the Air National Guard Fiscal Year 2012 ACP program. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 2 July 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the record as recommended. The following documentary evidence was considered in AFBCMR BC-2012- 04161: Exhibit A. DD Form 149, dated 27 March 2012, w/atchs. Exhibit B. Letter, NGB/A1PF, dated 28 August 2012, w/atch. Exhibit C. Letter, SAF/MRBR, dated 1 October 2012. Exhibit D. Letter, SAF/MRB, dated 9 April 2013. Exhibit E. Letter, AFBCMR, dated 28 May 2013. Panel Chair