AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  97-02241 
COUNSEL:  ANTHONY STEFANSON 

HEARING DESIRED:  NO 

APPLICANT REOUESTS THAT: 

Applicant  is the widow of a  former service member, who requests 
that  she receive the remaining annual payments of  her deceased 
spouse's aviation continuation pay  (ACP) for 1991 through 1996. 

APPLICANT CONTENDS THAT: 

Counsel for the applicant  states that he believes the applicant 
has  suffered an  extreme  injustice.  The  former  service member 
died  in  the  line of  duty during  the  build-up  to  Desert  Storm. 
From a legal standpoint, his entitlement to the ACP benefits was 
fixed as of  the  date that he  signed the ACP  contract.  Counsel 
states that  all  of  the  exceptions, which would  have  terminated 
or 
the 
disqualification of the airman.  There was no specific provision 
in the law or in the regulations for termination in the event of 
death in the line of duty. 

entitlement, 

separation 

involved 

voluntary 

Counsel states that furthermore, after the hostilities ceased, in 
November of 1991, Congress passed an amendment to the ACP statute 
which  specifically  allowed  for  payment  of  the  full  bonus  to 
survivors  of  flyers  who  were  killed  during  the  Gulf  War. 
However,  that  amendment  was  limited  to  the  period  of  actual 
hostilities after January 17, 1991. 

Applicant's submission, which includes the deceased member's ACP 
contract and Report of Casualty, is attached at Exhibit A. 

STATEMENT OF FACTS: 

The relevant facts pertaining to this application, extracted from 
the  applicant's military  records, are  contained  in  the  letters 
prepared  by  the  appropriate  office  of  the  Air  Force  Office  of 

Primary Responsibility  (OPR) .  Accordingly, there  is no need  to 
recite these facts in this Record of Proceedings. 

AIR FORCE EVALUATION: 

The Retention Analyst, AFPC/DPAR, states that applicant's counsel 
incorrectly states that  "There was no specific provision in the 
law or in the regulations for termination in the event of death 
in the line of duty."  This is incorrect.  In the ACP  contract 
signed  by  the  deceased  former  member,  paragraph  2.c. (2) and 
paragraph 2.c. (3) clearly state that ACP payments will stop when 
the member is permanently disqualified from aviation service and 
when  the  member  is  no  longer  entitled  to  aviation  career 
incentive  pay. 
Unfortunately,  upon  his  death,  the  deceased 
former  member  became  ineligible  under  both  of  these  criteria 
according to Chapter 3  of AFR  60-13, Aviation  Service of Rated 
Officers, which was in effect at the time of the incident. 

Counsel  also  states that  Congress passed  an  amendment allowing 
the  widow  of  a  pilot  killed  during  the  Gulf  War  to  receive 
payment  of  the  full  bonus  amount. 
While  this  is  true, 
applicant's deceased spouse was not  killed during the war, but 
rather during Desert Shield, the pre-war build-up.  As stated by 
counsel himself, the deceased did  not meet  the criteria of  the 
amendment and is therefore not entitled to the remainder of his 
ACP contract. 

ACP is not a benefit, but rather a retention incentive that the 
It  is  money 
Air  Force  uses  to  retain  qualified  aviators. 
exchanged  for  rated  service  beyond  that  of  the  Undergraduate 
Flying Training  (UFT) Active Duty Service Commitment  (ADSC) ,  not 
a payment  that all aviators are automatically entitled to.  For 
this reason, the program  is designed to  stop ACP  payments when 
the  member  can  no  longer  fulfill  his/her  contract  obligation. 
Though  in  this  case,  the  reason  the  contract  could  not  be 
fulfilled  is  indeed  tragic, it  is  and  always has  been  clearly 
stated what  the requirements for receiving ACP are and, in this 
instance, those requirements were not met. 

A copy of the Air Force evaluation is attached at Exhibit B. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Counsel for the applicant states, in summary, that the Retention 
Analyst, AFPC/DPAR, is not correct in his assertion that the ACP 
contract  signed  by  the  deceased  clearly  provides  for  the 
termination  of  payments  upon  death. 
The  provisions  do  not 
clearly address death in the line of  duty as a disqualification 
If  death  in  the  line  of  duty  was  a 
for  ACP  payments. 

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circumstance that  would  terminate benefits, Congress would  have 
clearly indicated such. 

While it can be  debated whether ACP  is a  Ilbenefit", the Defense 
Authorization Act,  P.L. 100-456 is clear that  upon  an officers 
acceptance  of  the  ACP  agreement,  the  amount  payable  becomes 
I'fixedll.  The  lack  of  regulations  at  the  time  the  deceased's 
contract was  executed, the  likelihood that  he  was  the only  ACP 
recipient  killed  during  Desert  Shield,  and  the  circumstances 
surrounding his accident, all serve to distinguish this case from 
any others. 

A  copy of  counsel's response, with  attachments, is  attached  at 
Exhibit D. 

ADDITIONAL AIR FORCE EVALUATION: 

The  Chief, General  Law  Division, Office  of  The  Judge Advocate 
General,  AF/JAG,  states  that  they  recommend  denial  of  the 
application for two reasons.  First, applicant has identified no 
military record which contains a correctable error.  She does not 
claim, for example, that her late husband's records show too  many 
years  of  commissioned  service,  which  reduced  the  annual  ACP 
payment.  Rather, she is asking the AFBCMR to determine that the 
Air  Force's  implementation  of  Title  37  USC  301b  is  unjust. 
Second, AF/JAG believes  the Air  Force's implementation of Title 
37 USC 301b is reasonable and does not create an injustice.  The 
ACP  statute is a force-management tool enacted to help the Navy 
and  Air  Force  retain  mid-career  aviators  in  critical  ( L e . ,  
undermanned)  specialties by  offering  a  financial  incentive  to 
remain on active duty through the  14-year point.  Although the 
statute authorized the  services to pay  the  "total amountt1 of  a 
multi-year  bonus  in  a  lump  sum, Congress  effectively  required 
annual  installments by  appropriating only $36.2 million  for the 
Air  Force  for  Fiscal  Year  (FY) 1989,  the  first  year  of  the 
program. 

Furthermore,  the  statute  authorizes  the  Secretary  concerned  to 
recoup,  on  a  pro  rata  basis,  the  bonus  paid  to  an  aviator, 
whether in lump sum or installments, who  'Ifails to complete the 
total  period  of  active  duty  specified  in  the  agreement." 
Congress  did  not  further  specify  particular  conditions 
permitting,  requiring,  or  prohibiting  recoupment,  leaving  the 
determination of appropriate conditions and circumstances to the 
Secretary.  Given  this  broad  discretion,  the  Air  Force  could 
permissibly  have  implemented  the  statute  to  require  pro  rata 
recoupment in every case of failure to complete the agreed period 
of  active duty  (including death) ,  regardless of  cause.  The Air 
Force  did  not  do  that,  however;  instead,  it  listed  certain 
conditions under which ACP entitlement would stop and under which 
recoupment would be  effected.  The former includes, for example, 
permanent disqualification for aviation service due to medical or 

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other  reasons,  termination  of  entitlement  to  aviation  career 
incentive pay  (ACIP, or monthly  flight pay), and  separation for 
any  reason. 
Circumstances  justifying  recoupment  are  more 
limited. 

AFMPC's  January  1991  letter  to  the  applicant  and  AFPC/DPAR's 
undated advisory opinion state that  "death is implied in the ACP 
agreement's termination provision for permanent aviation service 
disqualification "due to medical  or other reasons. 
AFPC  also 
suggests that  death must  terminate ACP  because death terminates 
ACIP,  a  precondition  to  receiving  ACP.  While  AF/JAG  do  not 
disagree with the first line of reasoning, they think the second 
is less strained.  AFR  60-13, which was in effect at the time of 
the  former member's death, contained provisions for permanently 
disqualifying officers for aviation service.  It does not mention 
death.  ACIP, on the other hand, is payable only to a member who 
is "entitled to basic pay," and only a member who is  'Ion active 
duty"  (except certain  National  Guard  and  Reserve  members)  is 
entitled  to basic  pay.  It  is well  understood that  a  deceased 
member is not on active duty. 

Where  Congress  has  bestowed  a  benefit  on  certain  persons  and 
established  specific  criteria  for  its  receipt,  AF/JAG  is 
unwilling to say there is an injustice to those who do not meet 
the  criteria--certainly  not  an  injustice  the  AFBCMR  should 
attempt  to  correct.  The  former  member's  death  was  no  doubt 
tragic,  but  so  have  been  the  deaths  of  other  aviators,  both 
before  and  after  the  DESERT  STORM  hostilities,  in  the  Persian 
Gulf region and elsewhere.  If Congress wanted the survivors of 
every aviator who dies before receiving the full amount of ACP to 
receive the unpaid amounts, it could easily have said so.  AF/JAG 
believes  the  specificity  with  which  Congress  drafted  the 
provision demonstrates not only the intent to carefully limit its 
beneficiaries, but  also a tacit approval of  the  services' prior 
interpretation of Title 37 USC 301b, in which death constituted a 
reason for terminating ACP.  They recommend denial of applicant's 
request. 

A  copy  of  the  additional  Air  Force  evaluation  is  attached  at 
Exhibit E. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

A  copy of  the  additional Air  Force evaluation was  forwarded  to 
counsel  on  23  January  1998  for  review  and  response  within  30 
days.  As  of  this  date, no  response  has  been  receive by  this 
off ice. 

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THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 

2 .   The application was timely filed. 
3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice.  After 
a  thorough  review  of  the  evidence  of  record  and  applicant's 
submission, the majority of the Board  is not persuaded that the 
applicant  should  receive  the  remaining  annual  payments  of  her 
deceased  spouse's  aviation  continuation  pay  (ACP)  for  1991 
through 1996.  Counsel's contentions are duly noted; however, we 
do not find these assertions, in and by themselves, sufficiently 
persuasive  to  override  the  rat ionale provided  by  AFPC/DPAR  and 
the  Office  of  The  Judge Advocate  General.  We  therefore agree 
with the recommendations of the Air Force and adopt the rationale 
expressed  as the basis  for our decision that  the applicant  has 
failed  to  sustain  her  burden  that  she  has  suffered  either  an 
error  or  an  injustice.  Therefore,  the  majority  of  the  Board 
finds  no  compelling  basis  to  recommend  granting  the  relief 
sought. 

RECOMMENDATION OF THE BOARD: 

A majority of the panel finds insufficient evidence of error or 
injustice and recommends the application be denied. 

The following members of the Board considered this application in 
Executive Session on 24 March  1998, under the provisions of AFI 
36-2603. 

Mr. Charles E. Bennett, Panel Chair 
Mr. Allen Beckett, Member 
Mr. Patrick R. Wheeler, Member 

By  a  majority  vote,  the  Board  recommended  denial  of  the 
application.  Mr. Bennett voted to correct the records but  does 
not  desire  to  submit  a  Minority  Report. 
The  following 
documentary evidence was considered: 

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. 

Exhibit A.  DD Form 149, dated  1 9   Oct  90, w/atchs. 
Exhibit  B.  Letter, AFPC/DPAR,  undated. 
Exhibit  C.  Letter, AFBCMR,  dated 22 Sep 97. 
Exhibit D.  Counsel's Letter, dated 15 Oct  97, w/atchs. 
Exhibit  E.  Letter, AF/JAG, dated 9 Jan 98. 
Letter, AFBCMR, dated 23 Jan 98. 
Exhibit  F: 

CHARLES E .   BENNETT 
Panel Chair 

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