RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  98-02066
            INDEX CODE:  113.04
            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His  Active  Duty  Service  Commitments  (ADSCs)  associated  with   tuition
assistance and graduation from Weapons School be commuted  to  present  day;
that he be permitted to accept a two-year  Aviator  Continuation  Pay  (ACP)
agreement; that he be compensated in the amount of $24,000 for the  two-year
ACP agreement as opposed to the normal  two-year  ACP  payment  of  $18,000;
that the start date of this ACP agreement be 1 November 1997; and  that  his
new ADSC be established as 1 November 1999.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Because of the Air  Force’s  refusal  to  correct  his  Undergraduate  Pilot
Training (UPT) ADSC from eight years to seven, he was forced to  attend  the
F-15 Weapons School in January 1996, which in turn, caused him  to  incur  a
five-year ADSC of 14 July 2001.  He also argues that he  was  not  counseled
in advance that he would incur this ADSC.

Applicant states, in part, that he graduated from UPT on 28 June 1990.   The
Air Force was unable to have him sign a new  ADSC  contract  reflecting  the
eight-year commitment because he already had one for  UPT  in  his  official
record dated back to the  start  of  his  Junior  year  of  college  (1986).
However, upon completion of UPT, his MPF incorrectly entered  an  eight-year
commitment in his official records.

During a records review sometime in mid-1991, he first  recognized  the  UPT
ADSC error.  When he mentioned the  problem  to  his  flight  commander,  he
instructed him to pursue the problem through  the  local  Holloman  AFB  MPF
office which he did.  In 1991, he asked the Holloman AFB MPF to correct  the
problem but it wasn’t resolved.  The F-15s were leaving  to  make  room  for
the F-117s and he had to find an assignment.  He  moved  again  in  February
1991, this time to Bitburg, Germany.  In the  Summer,  he  received  another
records report (RIP)  and  noticed  the  ADSC  mistake  still  existed.   He
revisited  this  issue  with  the  local  Bitburg  MPF  office   for   final
resolution.  However, the Air Force announced Bitburg Air Base  was  closing
and once again the mistake had not been corrected by early 1994 when he  had
to move again, this time to RAF Lakenheath, UK.

Soon after his arrival in England, he went to the local  MPF  office  again.
Over many visits he notified them of multiple  problems  with  his  records.
At this point in his Air Force career his UPT ADSC was still  nonexistent  –
missing every temporary duty assignment except  his  trip  to  Saudi  Arabia
from 1991.  The correction process was cumbersome  and  laborious  at  best.
When you and your squadron are deployed almost 50% of the  time  you  simply
do not have time available to continually hound  people  at  the  MPF.   You
notify them of a problem and expect (hope) it will be corrected.   When  you
do finally get a second to visit the MPF to follow-up you  frequently  leave
without ever getting anything accomplished.  Reasons include:  wrong  office
hours or no appointment; the person you need to see is  out  to  lunch,  TDY
sometimes for weeks, or on leave; the office is closed for  “training”;  the
MPF is conducting an exercise and can only handle  emergencies;  the  office
“expert” just moved and someone is just learning their job.   He  wishes  he
could say this was the exception rather than the rule, but it is not.  In  a
message issued by AFPC, they state, “During the early  1990’s,  as  the  Air
Force reacted to rapidly declining force structure and one of  the  steepest
personnel draw downs in Air Force history  ...  we  extensively  reorganized
and reduced personnel  and  other  support  functions,  leading  to  lowered
experience  levels  in  our  MPF.”   In  early  1995,  he  became  extremely
frustrated, along with a couple other pilots in his  squadron  who  were  in
the same situation, that their UPT  ADSCs  were  still  incorrect  in  their
official records.  He persisted with personnel at his local  MPF  that  they
had to get the problem resolved, but  they  simply  claimed  the  eight-year
ADSC was correct.  When he called MPF Headquarters in San  Antonio,  TX,  he
got the  same  “party  line”  and  even  perceived  some  attitude  as  they
insinuated they were undermanned, very busy, and didn’t have time  to  waste
continually telling him the commitment was eight years.

Later that year, in the Fall of 1995,  he was faced with  a  major  decision
and possibly the most difficult he’s had to make in his  Air  Force  career.
He had about 16 months left on his assignment at  RAF  Lakenheath.   He  had
about 19 months remaining on what he knew  was  his  actual  pilot  training
ADSC.  The problem was the Air Force  has  repeatedly  (Attachment  6)  made
their  position  clear  they  were  holding  him  for  another  12   months,
essentially  making  his  retainability  31  months.   Along  that  line  of
thinking he  would  still  have  over  15  months  of  commitment  when  the
Lakenheath  assignment  was  over.   He  would  be  forced  to  find  a  new
assignment to serve out this time.  On paper, due to multiple base  closures
and frequent moves over a short period of  time,  his  record  would  simply
read that he had three consecutive F-15 assignments – a prime career  by  an
MPF assignment team standard.  To  complicate  matters  the  MPF  assignment
team sentiment at the time was that he would get assigned to ATC to  fly  T-
37/38s at  UPT base, or worse yet to  an  Army  unit  as  a  non-flying  Air
Liaison Officer (ALO).  If he took the ATC  job   he  would  finish  T-37/38
qualification training during the Summer of 1997 and be forced  to  incur  a
new three-year ADSC for the training.  If he chose to turn down the  job  he
risked being sent on a non-flying remote assignment for at least a year  and
then could incur another one year ADSC for his return to the United  States.
 Realizing the UPT ADSC resolution was likely futile, he attempted to  solve
the dilemma by attending the F-15 Weapons School class starting  in  January
1996.  By graduating he would at least guarantee his future flying would  be
in the F-15 – the type he’s enjoyed and trained  so  hard  to  do  over  the
previous five years.  He graduated from Weapons  School  in  June  1996  and
returned to RAF Lakenheath to be the Weapons Officer.

On 30 October 1996, over four months  after  his  return  from  the  Weapons
School Course a new problem surfaced.  The RAF Lakenheath MPF called to  say
they need to talk to him and have him sign a few  papers.   Later  that  day
personnel at the MPF informed him a mistake had been made in that he  should
have been counseled well prior to  his  departure  for  the  Weapons  School
Course about an ADSC associated with the training and asked him to  sign  an
Air Force Form 63, a form reflecting he intended to attend  the  course  and
would accept the ensuing commitment.   This  pre-course  counseling  session
never occurred and this meeting with MPF personnel was  the  first  time  he
was informed he would receive a five-year ADSC for Weapons School.

As you might expect he was angry  and  frustrated  and  refused  to  initial
Section II on the Air Force Form 63 that certifies  he  had  been  counseled
and would accept the ADSC.   MPF  personnel  told  him  he  had  no  choice,
emphasizing it was impossible to decline  the  ADSC  since  the  course  was
already complete.  He once again refused, reiterating it  is  not  right  to
hold someone accountable for something he had no way of knowing,  given  the
fact that the MPF failed to counsel him in any way  and  failed  to  execute
the Air Force Form 63 before the training.  He wrote a dated remark  on  the
bottom of the Air Force Form 63 indicating he was not counseled  about  this
ADSC (Atch 2).  This very circumstance is the reason the Air Force  Form  63
exists.  Any attempt to force someone to sign it  after  the  fact  reflects
complete  hypocrisy.   Applicant’s  complete   statement   and   documentary
evidence submitted in support of his application are included as  Exhibit  A
with Attachments 1 through 11.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant graduated from the Reserve Officers  Training  Program  (ROTC)  in
June 1988 and began UPT on 21 June 1989.  Upon graduation  from  UPT  on  27
June 1990, he received an ADSC of eight years (26 June 1998) rather  than  a
seven-year ADSC of 26 June 1997.

AFPC states  that  a  BCMR  ruling  resulted  in  an  AF  Form  1056  taking
precedence over the established Air Force regulation in cases where  the  AF
Form 1056 differs from the UPT ADSC in the system.  However,  the  applicant
advises that the Air Force was unable to have him sign a new  ADSC  contract
reflecting the eight-year commitment because he already had one for  UPT  in
his official record dated back to the start of his Junior  year  of  college
(1986).  In any event, applicant’s UPT ADSC should have been established  as
seven years (26 June 1997) as opposed to eight years (26 June 1998).

Applicant subsequently completed F-15  Fighter  Weapons  School  on  15 June
1996 and incurred a five-year ADSC of 14 June 2001.  However,  there  is  no
AF Form 63 on file indicating that he was timely apprised of the  commitment
and given the opportunity to voluntarily accept the five-year ADSC.

Applicant acknowledged and incurred a two-year  ADSC  of  4  June  1999  for
tuition assistance.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRS states, in part, that applicant is contesting the validity  of
his ADSC for AFT.  He was scheduled to attend F-15  Fighter  Weapons  School
via the Air Force Training Management  System  (AFTMS).   This  generated  a
training allocation notification (RIP) which clearly indicated  a  five-year
ADSC would be incurred.  He was required to initial the following  statement
on the RIP, “I accept training and will obtain the  required  retainability”
and “I understand upon  completion  of  this  training,  I  will  incur  the
following active duty service commitment (ADSC).”  In its  interaction  with
the PDS, AFTMS relies on  a  table  of  ADSCs  for  given  courses;  in  the
generation of a training allocation RIP,  AFTMS  refers  to  this  table  to
automatically retrieve  the  proper  ADSC  for  the  specific  course  being
allocated.  They have confirmed the table contains the  correct  ADSC  (five
years) for Fighter Weapons School.  However, the training allocation RIP  is
maintained in the member’s relocation folder for only a few months and  then
destroyed; thus, it is no longer available for their  review  at  this  late
date.

Notwithstanding the absence of documentary evidence, HQ AFPC/DPPRS  believes
the awareness of the  association  of  ADSCs  with  flying  training  is  so
commonplace that applicant volunteered for and accepted the  training  fully
aware that he would receive an  ADSC.   His  failure  to  avail  himself  of
readily available  official  and  authoritative  information  regarding  the
correct length of the ADSC does not invalidate his incurrence of  the  ADSC.
It is also noted that applicant has failed to categorically claim  that  (l)
he had no knowledge of the five-year ADSC prior to incurring it and (2)  had
he had that knowledge, he would have declined to accept the training  rather
than incur an additional ADSC.  Indeed, they believe the omission  of  these
categorical claims is deliberate, as they would be incredulous if  applicant
made such claims given the notification  of  the  ADSC  he  likely  received
incidental to his training, the common knowledge of ADSCs and  the  plethora
of authoritative information available to clarify any confusion he may  have
had.

In conclusion, it is recommended that applicant’s request to have  his  ADSC
for UPT corrected to seven years be approved.  However,  it  is  recommended
that his requests to remove his ADSC for tuition assistance of 4  June  1999
and his ADSC for AFT be denied.  It is indicated that he signed an  AF  Form
63 acknowledging his tuition assistance ADSC; and that  the  presumption  of
his foreknowledge of the ADSC and his completion of Weapons System  training
rather than opting for separation from the Air Force constitutes  his  tacit
acceptance  of  the  commitment  and  overcomes  the   absence   of   formal
documentation of his acceptance of the ADSC.  Lastly, the  dilatory  actions
on his part for two years subsequent to the establishment of  the  five-year
ADSC constitutes an after-the-fact  acceptance  of  the  service  commitment
(Exhibit C with Attachments 1 & 2).

In addressing applicant’s request for  retroactive  dating  for  a  variable
length ACP agreement effective in November 1997, HQ  AFPC/DPAR  states  that
applicant discovered an error in his UPT ADSC in 1991.  Over the next  seven
years, he made attempts via local MPFs to have  the  ADSC  error  corrected.
The data  available  at  the  MPF  level  accurately  reflected  applicant’s
correct UPT ADSC.  The ADSC available at the local level is based solely  on
the AF regulatory commitment of eight  years  of  service  after  completing
pilot training.  Applicant fit the regulatory guidelines for  an  eight-year
UPT ADSC.  A BCMR ruling resulted in an AF Form 1056 taking precedence  over
the established AF regulations in cases where the AF Form 1056 differs  from
the UPT ADSC in the system.

The FY98 changes to the ACP program, as well as other factors,  resulted  in
approximately 350 pilots calling HQ AFPC/DPPRS to  verify  their  UPT  ADSCs
via a microfiche search of the AF Form 1056.  The only AF office capable  of
performing the records search is AFPC/DPPRS.  The numerous phone  calls  and
subsequent record corrections resulted in the Air Staff  directing  AFPC  to
verify UPT ADSCs for all FY98 ACP eligible pilots.   In  those  cases  where
the  UPT  ADSC  was  incorrect,  AFPC/DPAR  was  directed  to  contact   the
individual and verify whether or not he/she wishes  to  have  the  UPT  ADSC
corrected.  Additional  guidance  was  given  to  offer  ACP  based  on  the
corrected ADSC.  In accordance with AF policy, the author  of  the  advisory
opinion contacted applicant and explained  to  him  his  situation  and  his
options.

Current  AF  policy  regarding  the  treatment  of  FY97/98  ACP  first-time
eligible pilots states that those FY97 pilots who either elect to  amend  an
agreement or enter into an agreement are allowed to  do  so  under  the  new
terms.  Pilots electing to amend a long  term  (through  the  14th  year  of
commissioned service) agreement can do so and  will  be  paid  retroactively
from the original eligibility  date.   Because  the  FY98  National  Defense
Authorization Act (NDAA) was signed on  18   Nov  97,  any  FY97  pilot  who
elects to enter into a variable length agreement has an ACP  ADSC  based  on
the signature date vs. the original eligibility date.   This  policy  covers
all FY97 first-time  eligible  pilots,  regardless  of  corrections  to  UPT
ADSCs.

The current policy has been fairly applied to  all  pilots  who  were  in  a
situation similar to  applicant’s.   His  request  for  a  retroactive  ADSC
should not be granted.  His failure to contact AFPC/DPPRS  during  the  time
when many of his peers did so should not entitle him to special relief.   In
matters  of  personal  finance,  the  AF  has  no  control  over   potential
individual losses or gains from personal investments.   Applicant  will  not
lose any of his total entitlement should he elect to enter into a long  term
or variable length agreement.  However, if the  decision  is  to  grant  the
relief sought, AF policy should be amended to allow applicant to enter  into
a variable length ACP agreement with the  ADSC  effective  19 November  1997
(Exhibit D with Attachments 1 through 2).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Responding to the HQ AFPC/DPPRS advisory opinion, applicant states, in  part
that his primary concern abut the  advisory  opinions  is  that  instead  of
dealing with the crux of the issue which generated his  application  to  the
AFBCMR, the AFPC opinions concentrate on less important,  unrelated  issues.
As detailed in Attachment 1 of his application to the Board, after years  of
repeatedly being told  by  the  AFPC  that  they  were  holding  him  to  an
erroneous eight-year UPT ADSC, he attempted to solve his career  dilemma  by
attending Weapons School.  The advisory opinion opted  to  focus  solely  on
his  attendance  of  this  training  course  while  ignoring  the   repeated
oversights and errors concerning the improper documentation  of  his  actual
UPT ADSC by the AFPC – the very problem that put him in a position  to  have
to decide to attend Weapons School.  By not correcting  his  UPT  ADSC  over
the years, the AFPC denied him an opportunity he should have had during  his
RAF Lakenheath assignment (Mar 94 - Jul 97).  Specifically,  he  should  not
have been forced to make a follow-on assignment decision in  late  1995  and
should have maintained his ability to make an unfettered career decision  to
either remain in the Air Force or separate when his UPT  commitment  expired
in June 1997.

The author of the DPPRS advisory states in paragraph “a” of  the  DISCUSSION
portion of her advisory opinion, “Once the appropriate  office  at  HQ  AFPC
was notified [of the UPT ADSC error], it was immediately  corrected.”   This
is simply not true.  Their local office, the Holloman AFB MPF, was  notified
of the error back in 1991.  Secondly, Atch 6  of  his  application  “Officer
Personnel Briefs”, shows every base he has been  assigned  to  through  1997
maintained the UPT ADSC was eight years (June 28, 1998).  Finally, even  his
Aviator Continuation Pay (ACP) paperwork (Application Atch 7)  generated  as
recently as April 21, 1998, by the AFPC reflects the AFPC  was  holding  him
to an eight-year UPT ADSC.

In paragraph “c” of her RECOMMENDATION section the author  of  the  advisory
goes on to say, “The dilatory actions on the part of  Captain  “D”  for  two
years subsequent to the establishment  of  the  five-year  [Weapons  School]
ADSC constitutes an after-the-fact acceptance of  the  service  commitment.”
This is also not accurate.  On October 30,  1996,  when  first  advised  and
asked to  sign  the  Weapons  School  ADSC,  he  asked  how  to  appeal  the
injustice.  After pursuing the issue  over  the  next  eight  months  (until
leaving England) nothing was resolved.  After settling  at  Nellis  AFB,  he
took up the issue again with the local MPF.  On  February  23,  1998,  after
multiple meetings with the Chief of the Nellis AFB MPF, he  wrote  a  letter
(Attachment 12 - submitted with this letter) concerning the  issue,  as  per
his personal instructions, only to find out months later even this  was  not
the correct process to get the situation resolved.

Responding to the HQ  AFPC/DPAR  advisory  opinion,  applicant  states  that
there are three troubling  comments  made  by  the  author.   What  is  most
disturbing is in paragraph “b” of the BACKGROUND section.   He  states,  “In
cases where the UPT ADSC was incorrect, AFPC/DPAR was  directed  to  contact
the individual and verify whether he wishes to have the UPT ADSC  corrected.
 In accordance with AF policy,  he contacted Captain “D”  and  explained  to
him his situation and his options.”

While the author of the advisory opinion did explain  his  options,  it  was
only after he took the initiative to call him!  In fact when  he  called  on
June 10, 1998, it was the second call he made to  him  concerning  questions
he had about the FY 98 ACP contracts.  If  you  reference  his  application,
Attachment 3, you’ll see he initiated all calls to the  ACP  office  of  the
AFPC.  No one in that office ever contacted him via  phone,  letter,  e-mail
or any other means.  In fact after ten minutes of  talking  on  that  second
call, the advisory author almost said nothing to him again until  he  caught
himself just before hanging up the phone .. “wait a minute.   What  is  your
name again?  Give me your SSAN.”  After a  long  pause  he  continued,  “You
actually had a  seven-year  UPT  ADSC  and  should  have  been  offered  the
contract last year.”  When he asked why he wasn’t notified immediately  when
the Air Force finally acknowledged the seven-year ADSC he got  the,  “You’re
a difficult guy to get a hold of” line.  He contends that if  he  or  anyone
in his office had really contacted him,  as  he  claims,  his  ACP  contract
would not have reflected the incorrect (28 Jun 98) effective  date  (Atch  7
to  basic  application)  and  his  personnel  briefs  (Atch   6   to   basic
application) would not continue to show the 18 Jun 98  ADSC  date  over  the
years.

The second significant problem concerns paragraph 2, the BASIS FOR  REQUEST.
 The  advisory  author  states  he  feels  the  UPT  ADSC  problem  was  not
discovered and corrected in a timely manner.  The reality is  he  discovered
the problem in 1991 and immediately notified his local MPF office.   It  is,
however, true the problem was never corrected.

The third problem he has is in  the  author’s  RECOMMENDATION  section.   He
claims the current policy has been fairly  applied  to  all  pilots  in  his
situation.  First of all, “Fairly” is a poor choice of  words  and  reflects
his opinion, not policy.  Secondly, if there have really  been  hundreds  of
pilots in his situation trying to get their UPT ADSCs corrected since  1991,
he'd like to know why the situation was not  rectified  years  ago  and  why
they weren’t notified until now.  The author of  the  advisory  goes  on  to
claim he did not try to contact AFPC/DPPRS and therefore is not entitled  to
any  special  relief.   He's  not  sure  how  he  can  state  this  in  good
conscience.  Being stationed overseas for over five consecutive  years  from
February 1992 - July 1997 he doesn’t know  what  else  he  could  reasonably
have done to get his record corrected, barring a personal visit to  Randolph
AFB.  He worked through local MPF offices over the years, thinking  that  is
why they exist.  When he did call the AFPC he  still  never  got  the  issue
resolved.  Even recently when he called the AFPC Records Section on July 21-
22, 1998 (reference application Atch 3) to try to get a  hard  copy  of  his
ROTC Contract no one there seemed to know what he was talking about.  It  is
only by luck Airman “R” in the ADSC section told him who to  call  back  and
what to specifically ask for.  Applicant’s complete statement is at  Exhibit
F with Attachment 1.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Upon being asked to comment on applicant’s request that  his  ACP  agreement
be effective as of  November  1997,  HQ  AFPC/DPAR  states,  in  part,  that
current Air Force policy does not allow pilots  to  get  ADSC  “credit”  for
variable length ACP agreements.   Policy  guidance  only  allows  pilots  to
receive payments for variable  length  ACP  agreements  in  exchange  for  a
predetermined ADSC (12 months,  24  months,  or  36  months).   The  service
commitment is based on  a  pilot’s  initial  eligibility  date.   For  those
pilots whose initial eligibility date is in  FY97  (applicant’s  case  using
the correct UPT ADSC), the ADSC for a variable length  agreement  begins  on
the date the agreement is signed.

His recollection of  the  conversation  he  had  with  applicant  about  his
options was explaining to  him  ACP  policy  regarding  signing  a  variable
length agreement and what the ADSC would be based on.  He was  also  briefed
on submitting a BCMR package and the fact  that  not  signing  an  agreement
would affect the date of the variable length ACP ADSC.  As he stated in  his
original advisory, applicant is not  being  financially  penalized  for  the
incorrect ADSC.  He will still receive any, and all, money  he  is  entitled
to.

Finally, his BCMR recommendations have to be consistent with how  they  have
applied the rules to people in  similar  situations.   He  has  applied  Air
Force policy guidance consistently to all pilots with  incorrect  UPT  ADSCs
who have requested to be eligible for ACP based on the corrected  UPT  ADSC.
His recommendations to the BCMR  have  been  consistent  with  past  actions
(Exhibit H with Attachment 1.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

In response to the additional advisory opinion, applicant submits a copy  of
a recent Aviator Continuation Pay (ACP) agreement showing that  his  records
still reflects an eight-year UPT ADSC of 28 June 1998.  He states, in  part,
that it is disturbing that even now AFPC seems to be unable to  admit  their
mistake and take the appropriate action to correct the situation.  This  ACP
contract generated by AFPC and sent  directly  to  his  Squadron  Commander,
when signed, becomes a legally binding contract.  A contract AFPC will  hold
him  to.   However,  their  documentation  is   still   incorrect   and   is
inconsistent in that it does not support what they  say  in  their  advisory
opinions.  The only thing that is consistent is AFPC’s  history  of  failing
to recognize, admit, and correct the problem.  The most  recent  example  is
not  an  isolated  case.   Applicant’s  complete  statement  and  additional
documentation submitted in support of his case are  included  as  Exhibit  J
with Attachment 13.

In additional responses, applicant states, in part, that the author  of  the
HQ  AFPC/DPAR  advisory  continues  to  maintain  that  he  is   not   being
financially penalized in the matters of  his  case  before  the  Board.   He
further states that he will receive any, and all, money he is  entitled  to,
But the facts are as follows:  By adamantly insisting that he had an  eight-
year UPT ADSC  and  refusing  to  correct  his  personnel  records  when  he
notified  them  of  their  errors  over  the  years,  AFPC  denied  him  the
opportunity to receive a large  sum  of  money  when  his  actual  UPT  ADSC
expired in 1997.  The opportunity to receive a large sum of money well  over
a year ago is not the same as receiving the  same  amount  of  money  today.
That is a lost opportunity and  that  is  a  penalty.   Furthermore,  he  is
disturbed that AFPC does not acknowledge or seem to understand current  U.S.
tax laws which prevent him from accepting a large  initial  ACP  payment  in
1998, even though it is owed to him as back pay.  This large  payment  would
not be an issue had it been correctly paid  to  him  in  1997  when  he  was
entitled to it.  If he were to now accept  ACP  he  has  no  option  but  to
accept smaller amounts of money paid over a longer  period  of  time.   Once
again, that is a penalty.

Yet it is critical to realize we cannot focus solely on  the  dollar  amount
of the ACP agreement.  Let’s examine the ADSC effective date.  He  does  not
understand why AFPC feels it is acceptable to act as if they  did  not  make
numerous mistakes concerning his UPT ADSC.  Specifically, they aim to  treat
him the same as someone who either: (l) actually had an  eight-year  (versus
his seven-year) UPT ADSC and was eligible for ACP  for  the  first  time  in
June 1998 or (2) was eligible for ACP in  1997,  but  delayed  his  decision
until June 1998.  Remember he did not  choose  to  delay  his  ACP  decision
until June 1998.  AFPC would not allow him to execute an ACP  agreement  any
earlier.  June 10, 1998, was the first date AFPC  admitted  their  UPT  ADSC
mistake to him and would even consider allowing him to accept  any  type  of
ACP agreement.  Prior to his date they maintained he wasn’t  eligible  until
June 28, 1998.

Even today AFPC’s  ACP  agreements  addressed  directly  to  his  commanding
officer reflect they still maintain his UPT ADSC was June  28,  1998.   This
is in spite of the fact that included with his own letter submitted  to  the
Board on October 15, 1998, the advisory  author  attached  an  AFPC  message
which states, “The successful execution of the [ACP]  program  is  based  on
the Commander having accurate and complete information.”  So  why  then  did
AFPC incorrectly maintain his UPT ADSC for years and why  do  they  continue
to send his commander incorrect information?   AFPC  avoids  answering  this
question  altogether  because  all  documentation   indicates   they   never
corrected his UPT ADSC to seven-years.

In  his  advisory,  AFPC  continues  to  avoid   directly   addressing   the
retroactive ADSC issue by hiding behind Air Force policy.  Policy  does  not
define what is right.  Policy does not define what is fair.   Policy  surely
does not define what  is  legal.   Policy  is  simply  guidance  for  future
decision-making, based solely on one’s own interest.   It  is  important  to
understand he did not appeal to the AFBCMR to  simply  hear  about  the  Air
Force’s policies.  Sadly, these are after-the-fact policies  in  this  case.
Keep in mind the advisory author, as an individual who  implements  the  Air
Force’s  policies  regarding  ACP,  more  than  likely  has  limited  or  no
authority to make decisions regarding the interpretation of  or  changes  to
policy – especially in a case in which  the  Air  Force  does  not  wish  to
acknowledge their numerous and continual mistakes over the  years.   Instead
the advisory author attempts to neatly throw his case in  with  other  cases
he personally considers “similar”.  He appealed to the AFBCMR  because  this
Board has the authority to correct problems individual  Offices  of  Primary
Responsibility either cannot or refuse to correct.  It is notable  there  is
an Air Force policy which says a pilot is eligible to accept  ACP  upon  the
expiration of his UPT ADSC.  Unfortunately, the AFPC and  their  ACP  office
did not follow their own policy in his case.

Aside from the ACP implications in this case, no one in the AFPC  will  deal
with how their incorrectly maintained UPT ADSC put  him  in  a  position  in
late 1995 to have to make an assignment choice – an  unnecessary  assignment
choice based on his neatly overlapping DEROS and actual UPT  ADSC  remaining
while stationed at RAF Lakenheath.  Attachment 1, the  background  paper  on
his UPT ADSC problem first submitted with his  DD  Form  149,  is  perfectly
clear in describing how AFPC’s incorrectly maintained UPT ADSC has  impacted
him, not a number, but a real person on the USAF team.  How  does  the  AFPC
plan to give him back the opportunity he was  denied  when  his  actual  UPT
commitment expired – to make an unfettered career decision?

AFPC consistently avoids answering this question altogether.  When asked  to
produce anything which demonstrates they corrected his  UPT  ADSC,  as  they
claim to have, they cannot.  Their tactic is to avoid the issue  itself  and
attempt to deflect the  attention  to  after-the-fact  commitments  actually
generated by the problem, like weapons school and tuition assistance.   What
other conclusion can he draw, but that this  is  being  done  intentionally?
It would seem they don’t  want  to  publicly  admit  that  despite  numerous
notifications they did not correct their mistakes over the  years  and  that
they still have no plans for restitution.   Furthermore,  he  surmises  they
don’t want  to  acknowledge  that  they  denied  an  Air  Force  member  the
opportunity to choose to either remain in the Air Force or separate when  he
faithfully completed his  actual  UPT  commitment  which  expired  in  1997.
There should be no confusion about this.

The major point from his “Comments on the author of the HQ AFPC/DPPRS
Advisory Opinion” stressed that in her opinion she avoided dealing with the
UPT ADSC issue – the very problem that generated this case before the
AFBCMR.  In fact, she wrote only three short sentences in her four-page
letter alluding to a “paper correction” of the UPT ADSC problem in his
personnel records.   He has reason to doubt AFPC has a satisfactory answer
to this problem, otherwise he surmises she would have communicated it by
this late date.  Her after-the-fact recommendation accomplishes absolutely
nothing since the UPT ADSC she recommends correcting is now expired.
Applicant’s complete statement and documents submitted are included as
Exhibit K with Attachments 14 and 15.

In a final response of February 4, 1999, applicant clarifies the nature of
the relief he is seeking (Exhibit L).

_________________________________________________________________

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 a probable error or an injustice  warranting  favorable  action
on a portion of the applicant’s requests.  Applicant contends  that  because
of the Air Force’s refusal to correct his  UPT  ADSC  from  eight  years  to
seven, he was forced to attend the F-15  Weapons  School  in  January  1996,
which in turn, caused him to incur a five-year ADSC of  14  July  2001.   He
also asserts that he was not counseled in advance that he would  incur  this
ADSC.  Lastly, applicant asserts that by not correcting  his  UPT  ADSC  for
over eight years, AFPC denied him an opportunity he should have  had  during
his  RAF  Lakenheath  assignment  from  March  1994   through   July   1997.
Specifically, he should not have been forced to make a follow-on  assignment
decision in late 1995 and should have maintained  his  ability  to  make  an
unfettered career decision to either remain in the  Air  Force  of  separate
when his UPT commitment expired in June 1997.  On the other  hand,  the  Air
Force concedes that there is no ADSC Counseling Statement, AF  Form  63,  on
file.  Nor is  there  any  hard  evidence  that  the  applicant  was  timely
apprised of the five-year F-15 FWS  ADSC.   The  Air  Force,  however,  sets
forth the procedures used in making the applicant’s  assignment  whereby  he
should have been made aware of the ADSC and speculates that he was aware  of
the commitment  notwithstanding  his  adamant  assertion  to  the  contrary.
Moreover, it is believed that because of his  prior  experience  with  ADSC-
incurring events, it was unreasonable for  him  to  have  believed  that  he
could attend flying training without incurring an ADSC.  Had the only  issue
been  the  applicant’s  awareness  of  the  flying  training   and   tuition
assistance ADSCs, we may have found the Air Force rationale compelling.   In
this case, however,  we  have  documentary  evidence  that  even  after  the
applicant had complained about the length of his UPT  ADSC,  the  Air  Force
still took over eight years to  officially  change  his  UPT  commitment  to
seven years.  We also have a signed AF Form 63 showing  that  the  applicant
was counseled of the five-year FWS ADSC after he had completed the  training
and incurred the ADSC.

4.    We have no way of knowing whether or  not  the  applicant  would  have
declined the five-year FWS ADSC and elected to separate from the service  at
the expiration of his seven-year ADSC in 1997.  However,  we  do  know  that
the failure on the part of the Air Force to timely correct his UPT ADSC  and
timely apprise him of the five-year FWS ADSC unfairly  deprived  him  of  an
opportunity to make a  career  decision  upon  the  expiration  of  his  UPT
commitment.   In  consideration  of  all  the  circumstances  in  this  case
collectively,  we  believe  the  preponderance  of  the  evidence   supports
resolving the benefit of any doubt in favor of the applicant by voiding  his
FWS and tuition assistance ADSCs.

5.    Insufficient relevant evidence has been  submitted  to  demonstrate  a
probable error or  an  injustice  warranting  approval  of  the  applicant’s
request for permission to accept a two-year  retroactive  ACP  agreement  in
the amount of $24,000 as opposed to  the  normal  two-year  ACP  payment  of
$18,000.  First, we are not aware  of  any  law  or  regulation  that  would
permit us to grant monetary benefits in excess of  that  authorized  by  the
applicable Air Force  Instruction  even  if  we  were  inclined  to  do  so.
Secondly, even though the failure to  timely  correct  the  applicant’s  UPT
ADSC unfairly  deprived  the  applicant  of  the  opportunity  to  make  the
election in question in 1997, we do not believe that equity demands that  he
be provided, in effect, restitution for the Air Force’s  failure  to  timely
correct his UPT ADSC.  As noted by the Air Force, pilots electing  to  amend
a long term (through the 14th year of commissioned  service)  ACP  agreement
can do so and will be  paid  retroactively  from  the  original  eligibility
date.  Because the FY98 NDAA was signed on 18 November  1997,  however,  any
FY97 pilot who elects to enter into a variable length agreement has  an  ACP
ADSC based on the signature date vs.  the  original  eligibility  date.   In
other words, if the applicant wants a two-year  variable  length  agreement,
all he has to do is request the option and agree to  serve  on  active  duty
for two years from the effective date of the agreement.   If  the  applicant
had  elected  the  variable  length  agreement  at  the  expiration  of  his
erroneous UPT ADSC in 1998 and, therefore, indicated  an  honest  desire  to
remain on active duty for an additional two years, we might have  reached  a
different result.  Since he did not do so, however, we believe  that  he  is
seeking the retroactive two-year variable length  ACP  agreement  solely  as
compensation for the Air Force’s failure to timely correct his UPT  ADSC  as
opposed to a genuine desire to remain on active duty any longer than he  has
to.

6.    Applicant’s case is adequately documented and it has  not  been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that:

      a.    His five-year Active Duty Service Commitment (ADSC) incurred  as
a result of his completion of F-15  Fighter  Weapons  Training  in  1996  be
declared void.

      b.    His two-year ADSC incurred as a  result  of  his  acceptance  of
tuition assistance be declared void.

_________________________________________________________________





The following members of the Board considered this application in  Executive
Session on 25 March 1999, under the provisions of AFI 36-2603:

            Mr. Benedict A. Kausal, IV, Panel Chair
            Mr. Charles E. Bennett, Member
            Mr. Henry Romo, Jr., Member

All members voted to correct the  records  as  recommended.   The  following
documentary evidence was considered:

     Exhibit A.  DD Form 149, dated. 24 July 1998, with
        Attachments.
     Exhibit B.  Microfiche Copy of applicant's Master Personnel
        Records.
     Exhibit C.  Memorandum from HQ AFPC/DPPRS, dated 13 August
        1998, with Attachments.
     Exhibit D.  Memorandum from HQ AFPC/DPAR, dated 27 August
        1998, with Attachments.
     Exhibit E.  Letter from SAF/MIBR, dated 7 September 1998.
     Exhibit F.  Letter from applicant, dated 7 September 1998,
                 with Attachment.
     Exhibit G.  Memorandum from AFBCMR, dated 30 September 1998.
     Exhibit H.  Memorandum from HQ AFPC/DPAR, dated 15 October
        1998, with Attachment.
     Exhibit J.  Letter from applicant, dated 16 November 1998,
                 with Attachment.
     Exhibit K.  Letter from applicant, dated 5 January 1999,
                 with Attachments.
     Exhibit L.  Letter from applicant, dated 4 February 1999.




                                   CHARLES E. BENNETT
                                   Acting Panel Chair






INDEX CODE:  113.04
AFBCMR 98-02066




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to (APPLICANT) be corrected to show that:

            a.  His five-year Active Duty Service Commitment (ADSC)
incurred as a result of his completion of F-15 Fighter Weapons Training in
1996 be, and hereby is, declared void.

            b.  His two-year ADSC incurred as a result of his acceptance of
tuition assistance be, and hereby is, declared void.





JOE G. LINEBERGER

Director

Air Force Review Boards Agency