RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05082 COUNSEL: NONE XXXXXXX HEARING DESIRED: NOT INDICATED ________________________________________________________________ APPLICANT REQUESTS THAT: He be authorized payment for the second installment of the Fiscal Year (FY) 2010 Aviator Continuation Pay (ACP) bonus as reflected in his approved contract. ________________________________________________________________ APPLICANT CONTENDS THAT: His FY 2010 ACP contract was approved based on an exception to policy which allowed him to be on a two year contract utilizing Contingency, Exercise and Deployment (CED) orders. The purpose for the exception to policy was Air Combat Command (ACC) could not allocate two years of Military Personnel Appropriation (MPA) orders at a time. However, ACC agreed to authorize two years of CED travel orders showing intent to remain through the contract. The exception to policy required a statement of understanding indicating if two years of consecutive pay orders were not attained, a portion (or all) of the ACP payment would be recouped. He fulfilled the entire two year ACP contract on 14 Sep 2012 and has not been paid the second installment. The FY 2010 ACP policy stipulates one must be on orders for a minimum term of two years continuous duty (compiling multiple orders or amendments to reach the mandatory two-year term, is not authorized and exceptions to this policy, regardless of reason, are not authorized and will not be granted). As such, this policy does not stipulate the type of order one must be on, it only speculates it must be an order. Since this is the case, an exception to policy was submitted and subsequently approved allowing him to utilize a two year CED order as his continuous order. Throughout this period, he was on consecutive MPA pay orders. In support of his request, the applicant provides a copy of his FY 2010 Pilot ACP Agreement Statement of Understanding, exception to policy, CED orders and various other documents associated with his request. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The 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 both the applicant and his ACP Coordinator were miscounseled when the agreement was originally processed. The error was not caught nor corrected and the member received a payment and made plans for the projected second payment. According to the FY 2010 Air National Guard ACP Policy, members are only eligible to apply " ... for the period of time for the orders in hand." When the applicant submitted his ACP application, he had a two year CED order and Air National Guard Reserve Order Writing System (AROWS) orders effective 15 Sep 2010 through 30 Sep 2011. He received updated AROWS orders through 3 Dec 2012 and then received a MPA order on 25 Sep 2012 effective 15 Sep 2010 through 30 Sep 2012. Although he ended up with funded (AROWS) orders and actively served the entire period, the only orders that covered the entire length of the agreement when he applied were the CED orders. After consulting with NGB/AlPR, A1PF determined that CED orders did not constitute valid and funded duty orders and therefore did not meet the intent of the policy. If the applicant applied today for ACP with these orders, he would be denied because he would not meet the eligibility requirements per the policy. However, after speaking with the ACP Coordinator, A1PF found that this question was posed to NGB/A1PF at the time and they were told the CED orders would be accepted. Although this decision conflicts with the policy, the member and ACP Coordinator asked for clarification and were misinformed and miscounseled. Therefore, A1PF recommends his ACP agreement be honored in full and he be paid the second (and final) payment of $15,000 effective 15 Sep 2011. 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 MRB evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 8 Apr 2013 and 8 Jul 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. 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 others, similarly situated officers, it is our opinion , that because the applicant signed the ACP agreement based on counseling from the OPR and that similarly situated members of his unit had their records corrected, 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 OPR 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 15 Sep 2010 through 14 Sep 2012 at a rate of $15,000 annually, under the Air National Guard Fiscal Year 2010 ACP program. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 15 Aug 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- 05082: Exhibit A. DD Form 149, dated 12 Oct 2012, w/atchs. Exhibit B. Letter, NGB/A1PF, dated 29 Mar 2013. Exhibit C. Letter, SAF/MRBR, dated 8 Apr 2013. Exhibit D. Letter, SAF/MRB, dated 9 Apr 2013. Exhibit E. Letter, AFBCMR, dated 8 Jul 2013. Panel Chair 4 4