RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00454
            INDEX CODE:  128.14

            COUNSEL:  JOSEPH J. TRAFICANTI

            HEARING DESIRED:  No

_________________________________________________________________
APPLICANT REQUESTS:

Retroactive Aviation Career Incentive Pay (ACIP) from 20 Jun 95 to the
present.

________________________________________________________________

APPLICANT CONTENDS THAT:

His aviation pay was terminated on 20 Jun 95 by initiation of a Flying
Evaluation Board (FEB)  against  him.   The  Aeronautical  Order  (AO)
terminating his aviation service stopped his ACIP effective 20 Jun 95.
 The final decision of Air Education and Training  Command  (AETC)/CC,
dated 16 Dec 98, directed that he not be  disqualified  from  aviation
service.

Applicant’s complete submission is attached at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on  extended  active  duty  in  the
grade of captain.

On 9 Aug 95, AO #0621 terminated applicant’s  ACIP,  effective  21 Jun
95,  in  accordance  with  AFI  11-402,  paragraph  3.6.2.1,   pending
resolution of an FEB action.

On 15, 17, and  18 Aug  95,  an  FEB  convened  based  on  allegations
applicant violated flying regulations and procedures and  displayed  a
lack of  good  judgment.   A  majority  of  the  board  members  found
applicant did not intentionally violate flying regulations and did not
fly prohibited maneuvers.  A minority report filed by one of the board
members found applicant did not exercise good judgment  by  performing
those  maneuvers,   did   intentionally   violate   regulations,   and
recommended disqualification.  47th FTW/CC and 19th  AF/CC  eventually
concurred with the minority report.

On 26 Oct 95, 19th AF/CC directed the FEB be  reconvened  because  the
board failed to consider all information relevant to applicant’s rated
and professional qualifications.

On 12 Dec 95, the new  19th  AF/CC  determined  there  was  sufficient
information  in  the  original  FEB  and  rescinded  the  decision  to
reconvene.

On 26 Jan 96, AETC/CC  disqualified  applicant  for  aviation  service
effective 20 Jun 95.

AO #08, dated 28 Feb 96, disqualified applicant for  aviation  service
effective 21 Jun 95 under the  provisions  of  AFI  11-402,  paragraph
4.6.1.  The reason was:  Disqualified—FEB action.

In an application  to  the  AFBCMR,  dated  7 Aug  96,  the  applicant
requested that he be returned to aviation service.  On 9 Apr  97,  the
Board recommended  he  be  considered  by  an  FEB  to  determine  his
qualification for aviation service and that the results of the FEB  be
forwarded to the Commander,  AETC,  for  final  determination  of  his
qualification for aviation service.  The Board also  recommended  that
the final results of the Commander’s determination be forwarded to the
AFBCMR at the earliest practicable date  so  that  all  necessary  and
appropriate actions may be completed.   However,  on  21 Aug  97,  the
Chief,  General  Law  Division,  AF/JAG,  indicated   that   SAF/MIB’s
memorandum was capable of being misinterpreted; therefore, a corrected
directive was issued removing the last  statement  pertaining  to  the
final results of the Commander’s determination.

A complete copy  of  the  Record  of  Proceedings,  with  a  corrected
directive, is attached at Exhibit C.

On 5 Feb 98, a second FEB was convened to consider evidence concerning
applicant’s professional qualifications, specifically lack of judgment
and intentional violation of flying regulations.  The board found  the
applicant did perform four maneuvers which were not in accordance with
AETCR  55-37;  that  the  applicant  was  negligent,  but   “did   not
intentionally disobey Air Force regulations.”  The  board  also  found
the applicant demonstrated  a  lack  of  judgment  but  that  lack  of
judgment “did not imperil either personnel or equipment” and  that  it
did “not warrant guilt” with respect to AFI  11-402,  paragraph  4.3.4
(lack of judgment).  Based upon those findings,  the  FEB  recommended
the applicant remain qualified as a  pilot.   The  552nd  ACW/CC  (FEB
convening authority) concurred with the board’s recommendation and  on
16 Dec 98, AETC/CC (FEB approval authority) also  concurred  with  the
board findings and recommendation.

On 19 May 99, the Staff Judge Advocate (SJA),  19th  AF/JA,  indicated
that pending the first FEB, applicant’s ACIP was suspended  20 Jun  95
and permanently terminated  pursuant  to  AO  #08,  dated  28 Feb  96,
following  the  first  FEB.   The   second   FEB   made   one   simple
recommendation - that applicant remain qualified as a pilot in the Air
Force.  That recommendation was approved on 16 Dec 98 and Headquarters
Air Force Personnel Center (AFPC) was  tasked  to  publish  a  new  AO
assigning applicant an active Aviation Service  Code  (ASC)  effective
15 Dec 98.  Therefore, ACIP may be paid to  applicant  retroactive  to
that date.  However, there does not appear to be a basis on  which  to
credit him with ACIP payments between 20 Jun 95 and  15 Dec  98.   The
appropriateness of convening the two FEBs to  investigate  applicant’s
alleged actions was never  questioned.   During  the  second  FEB,  he
admitted flying prohibited maneuvers.  His AO was  properly  suspended
on 20 Jun 95 and may be properly  reinstated  as  of  15 Dec  98.   In
between those dates, he did not fly and was not otherwise qualified to
receive ACIP.

On 4 Jun  99,  the  Staff  Judge  Advocate  (SJA)  (AETC/JA)  reviewed
applicant’s request for retroactive ACIP from 20 Jun 95 to the present
and concurred with the legal  memorandum  of  the  19th  AF/JA,  dated
19 May 99.  The SJA indicated that the convening of the  two  FEBs  to
investigate the flying of applicant  was  appropriate.   However,  his
request for ACIP retroactive from 20 Jun 95 to the present  should  be
denied.   Instead,  any  approval  for  retroactive  ACIP  should   be
effective 15 Dec 98, the date  corresponding  to  the  requalification
date listed on AO #53, generated by  AETC/CC’s  concurrence  with  the
1998 FEB recommendation that applicant remain qualified as a pilot  in
the Air Force.

Per Military Pay Order, dated 16 Feb  99,  the  applicant’s  ACIP  was
reinstated effective 15 Dec 98.

________________________________________________________________

AIR FORCE EVALUATION:

The Director of Operations, AETC/DO,  reviewed  this  application  and
indicated that to be eligible to draw ACIP, in accordance with AFI 11-
402, paragraph 3.5, an officer must be entitled to basic pay,  hold  a
current aeronautical rating or be enrolled in training leading  to  an
aeronautical rating, and be qualified for aviation service.  The  1998
FEB and AETC/CC never directed the revocation of the AO #08  assigning
ASC 05 (disqualified for  aviation  service).   This  would  mean  the
applicant remained disqualified for aviation service  (no  ACIP)  from
21 Jun 95 until requalified for aviation service  on  16 Dec  98  when
AETC/CC  approved  the  findings  and  recommendation  of   the   FEB.
Headquarters AFPC was tasked  to  publish  a  new  aeronautical  order
assigning the applicant an active ASC  of  1J,  effective  15 Dec  98,
which would allow the applicant to  begin  drawing  ACIP  again.   The
AETC/DO  recommends  the  Board  disapprove  applicant’s  request  for
retroactive ACIP effective 20 Jun  95.   Instead,  alternative  relief
would be to recommend approval  of  ACIP  effective  15 Dec  98  which
corresponds to the requalification date listed on AO #53, generated by
AETC/CC’s concurrence with the 1998 FEB recommendation  the  applicant
remain qualified as a pilot in the Air Force.  By  order  of  AETC/CC,
the applicant is currently enrolled in flight training.  At  issue  is
whether or not he is entitled to retroactive ACIP.  He is entitled  to
back flight pay but not to the extent he is seeking.

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

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for the  applicant  reviewed  the  Air  Force  evaluation  and
provided a five-page response requesting applicant receive back flight
pay from 20 Jun 95 to 2 Apr 99 and any and all  flying  bonuses  which
would have been available to him, triggered by  his  aviation  service
and his receiving flight pay.  Counsel states, in part, that applicant
argues that his compensation should be restored retroactively  at  his
current  flight  pay  rate  or,  in  the  alternative,  at  the   ACIP
compensation rate that existed in Jun 95, as the Air  Force  suggests,
but at an additional 12% interest a year  since  then  until  Apr  99.
Anything  less  than  a  full  current   flight   pay   rate   applied
retroactively or the Jun 95 rate with 12% interest applied  from  1995
would not account for the fact the rate has been adjusted upward  over
time or for his loss suffered under the principle of the  “time  value
of money” effectively reducing the value of  the  Jun  95  flight  pay
amount.  To not grant applicant either, or both, effectively penalizes
him for the Air Force’s conduct over the last four years.

Counsel’s complete response is attached at Exhibit F.

________________________________________________________________

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  probable  error  or  injustice.   After  thoroughly
reviewing the evidence of record and applicant’s  submission,  we  are
not persuaded that he should be awarded ACIP from  20 Jun  95  to  the
present as requested.  After a review of the 4 Jun 99 SJA  memorandum,
it is apparent that applicant is entitled to  ACIP  commencing  15 Dec
98, the date corresponding to his requalification date as an Air Force
pilot.  Although applicant requests ACIP to be effective 20 Jun 95, we
note that between 20 Jun 95 and 15 Dec 98, he was disqualified to  fly
and  therefore  was  ineligible  to  receive  ACIP.    While   counsel
essentially asserts that as a result of applicant’s return  to  flying
status, he should be reinstated to  the  flying  status  he  possessed
prior to his removal from said status.  We are not so  persuaded.   As
we indicated in our initial review of this case, we had  no  intention
of substituting our judgment regarding his flying  qualifications  for
that of the AETC/CC.  What we determined was that  applicant  was  not
afforded a fair and impartial evaluation  at  his  FEB.   It  was  our
intent then, as it is now, that the final determination of his  status
following the new FEB would remain  with  the  AETC  Commander.   That
decision has been made and we find no evidence that it was the  intent
of the AETC/CC to reinstate applicant to flying status  as  of  20 Jun
95.   Rather,  the  Commander  determined  that  applicant  should  be
reinstated effective 15 Dec 98.  In view of the foregoing and with  no
reason to question the decision rendered by  the  AETC  Commander,  we
find  no  compelling  basis  upon  which  to  recommend  granting  the
requested relief.

________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of probable  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  this  application  in
Executive Session on 14 October 1999,  under  the  provisions  of  Air
Force Instruction 36-2603:

                  Ms. Patricia J. Zarodkiewicz, Panel Chair
                  Ms. Patricia D. Vestal, Member
                  Mr. Gregory H. Petkoff, Member
                Mrs. Joyce Earley, Examiner (without vote)

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 11 Jan 99, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Record of Proceedings, dated 11 Jul 97, w/atchs.
     Exhibit D.  Letter, AETC/DO, dated 21 Jun 99, w/atchs.
     Exhibit E.  Letter, AFBCMR, dated 19 Jul 99.
     Exhibit F.  Letter fr counsel, dated 14 Sep 99.




                                   PATRICIA J. ZARODKIEWICZ
                                   Panel Chair