RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-02754
            INDEX CODE:  128.04

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

By amendment, the recoupment of his Aviation Continuation Pay (ACP) be
reduced from $17,280.58 to $3295.96.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The accounting methodology used by the Defense Finance and  Accounting
Service (DFAS) was in error.

In support of his appeal, the applicant provided an expanded statement
and extracts from his military personnel records, to include a copy of
his ACP agreement.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was honorably discharged from all appointments on 30 Sep  00
under the provisions AFI 36-3207 (Non-Selection, Permanent  Promotion)
in the grade of captain.  He was credited with  11  years,  10 months,
and 18 days of active duty service.

The remaining  relevant  facts  pertaining  to  this  application  are
contained in the letters prepared by the appropriate  offices  of  the
Air Force.  Accordingly, there is no need to  recite  these  facts  in
this Record of Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Chief,  Aviation  Continuation  Pay,  AFPC/DPAOY,  reviewed  this
application  and  recommended  denial.   According   to   DPAOY,   the
methodology used by DFAS when calculating ACP  agreement  amounts  for
all Air Force officers--in accordance with Department of Defense (DoD)
Financial Management Regulation Volume 7A  and  DFAS  policy--is  both
fair and equitable.  The total agreement payment amount is divided  by
the total length of the agreement in  days  (360  days  per  year)  to
arrive at a “daily rate.”  This daily rate is then multiplied  by  the
number of days served under the agreement to arrive at the  amount  of
ACP the member has “earned.”   Based  on  the  “daily  rate,”  members
receive the annual payment at the beginning of the agreement year with
the member  “earning”  the  payment  over  the  course  of  the  year.
Therefore, the amount the applicant owed back  to  the  government  at
separation was the total amount paid minus the amount earned.

DPAOY noted that the 1997 National Defense  Authorization  Act  (NDAA)
limited total ACP payments to a maximum of $110,000.00  regardless  of
the agreement length.  The total entitlement of $110,000.00 is divided
by the total length of the agreement (in days) to determine the actual
daily rate.  Additionally, the Air Force backdated all ACP  agreements
in an attempt to create a higher daily rate to  make  agreements  more
lucrative for members.

DPAOY indicated that the  applicant  signed  two  separate  agreements
during his tenure in the Air Force. His initial  agreement,  dated  26
Nov 96, was for  $12,000.00  per  year,  to  the  fourteenth  year  of
commissioned service (13 Nov 02).  His renegotiated  agreement,  dated
11 Dec 97, at  a  rate  of  $22,000.00  per  year,  was  also  to  the
fourteenth year of commissioned service  (12 Nov 02).  When the second
agreement was backdated to 26  Nov  96,  it  exceeded  five  years  in
length.

Paragraph 2 of the applicant’s second agreement stated, “I am eligible
for $22,000 per year under option A.”  Although he  was  eligible  for
$22,000 per year, the specific terms of  his  agreement  dictated  his
annual rate and daily rates are lower  than  $22,000  (i.e.,  $110,000
divided  by  six  years  equals  approximately  $18,300   per   year).
According to DPAOY, a member may be eligible for a given  amount,  but
ultimately the specific terms of their  agreement--to  include  policy
changes  such  as  the  1997  NDAA--determine  payment   amounts   and
durations.  Although the applicant was eligible for $22,000  per  year
on his agreement, he was only being paid $18,300 per year  and  hence,
earning back his previous payments at  an  amount  less  than  $22,000
annually.

Additionally, DPAOY stated that paragraph  5  of  the  same  agreement
stated, “the unearned portion of ACP paid me is considered a  debt  to
the United States Government and  will  be  recouped  on  a  pro  rata
basis.”  The applicant was paid $88,240.06 under both ACP  agreements;
however,  he  only  “earned”  a  total  of  $70,959.48.   Hence,   the
“unearned" amount paid to him (i.e., DFAS recoupment) was $17,280.58.

In DPAOY’s  view,  no  changes  should  be  made  to  the  applicant’s
recoupment  amounts  at  time  of  his  separation.   The  agreement's
verbiage and Financial Management Regulations  govern  the  recoupment
policies of the Air Force, not individual member's interpretations  of
their agreement.

A complete copy of the  DPAOY  evaluation,  with  attachments,  is  at
Exhibit C.

The  Claims  Branch,  DFAS-POCC/DE,  reviewed  this  application   and
recommended denial.  DFAS-POCC/DE noted that the  applicant  initially
signed an ACP agreement effective 26 Nov 96  through  12 Nov  02.   He
would have completed 14 years of  Total  Active  Federal  Commissioned
Service (TAFCS) on 12  Nov  02.   The  date  of  12  Nov  02  was  the
applicant's Active  Duty  Service  Commitment  (ADSC)  stop  date  for
entitlement to Aviation Continuation Pay.

DFAS-POCC/DE indicated that the applicant's initial ACP agreement  was
for $12,000.00 per year.  He selected option  1:  50%  up  front.   He
received  $35,783.33  (50%)  of  the  entitlement  ($71,566.67).   The
remainder would be paid at the yearly rate of $7,208.73 for four years
and a final payment of $6,948.39.

The applicant renegotiated his ACP agreement on  or  about  11 Dec 97.
The old ACP agreement was cancelled and was replaced by  the  new  ACP
agreement.  The new ACP agreement  made  the  applicant  eligible  for
$22,000.00 per year under option A (Long-term).  Total payments  would
not exceed $110,000.00.  The agreement period  was  5  years  and  347
days.

The ACP agreement inclusive dates were 26  Nov  96  through  12 Nov 02
(2147 days).  The total entitlement  was  $110,000.00/2147  days  =  a
daily rate of $51.23428.  The applicant served from 26 Nov 96  through
30 Sep 00, his date of separation.  The applicant was entitled to  ACP
for 1,385 days.

According to DFAS-POCC/DE, members receive the ACP payments  based  on
the “daily rate” with the member “earning” the payment over the course
of the agreement.  If a member completes and  serves  for  the  entire
agreement, he will have earned the full amount.  In the  case  of  the
applicant, he separated from the Air Force on 30  Sep  00  and  served
only 1,385 days of the ACP agreement.  He was paid $88,240.06  of  ACP
but was only entitled to $70,595.48 (1,385 days  earned)  x  $51.23428
(daily rate) = $70,595.48.  The amount of overpayment was $17,280.58.

A complete copy of the DFAS-POCC/DE evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant  indicated  that  the  basis  of  his  request  is  not  the
accounting methodology used by DFAS was in error,  but  that  the  ACP
contract that he signed stated  something  completely  different  than
what DFAS policy is.  Nowhere in any ACP contract that he  signed  did
it state anything about computing payment based on the number of  days
of the agreement.  If it is DFAS policy to pay ACP on  a  daily  rate,
the ACP contract should have been written to reflect  that,  not  “per
year” as stated in  each  ACP  contract  that  he  signed.   In  other
instances where Air Force personnel have signed  contracts  that  were
interpreted  differently  or  were  written   differently   from   the
regulation, the Air Force has decided that  the  contract  would  take
priority over the regulation.  He believes that the correct precedence
has been set and should continue to be followed.

Applicant’s complete response is 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.   The  applicant's
complete submission was thoroughly reviewed and his  contentions  were
duly noted.  However, we do not find the  applicant’s  assertions  and
the documentation presented in  support  of  his  appeal  sufficiently
persuasive to override the rationale provided by the Air Force  office
of primary responsibility (OPR) and DFAS.  Therefore, in  the  absence
of evidence to the contrary, we adopt  the  Air  Force  rationale  and
conclude that no basis exists to recommend granting the relief  sought
in this application.

_________________________________________________________________

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 18 Apr 01, under the provisions of AFI 36-2603:

      Mr. Patrick R. Wheeler, Panel Chair
      Mr. Lawrence R. Leehy, Member
      Ms. Marilyn Thomas, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Oct 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPAOY, dated 1 Nov 00, w/atchs.
    Exhibit D.  Letter, DFAS-POCC/DE, dated 9 Jan 01.
    Exhibit E.  Letter, SAF/MIBR, dated 2 Feb 01.
    Exhibit F.  Letter, applicant, dated 14 Feb 01.




                                   PATRICK R. WHEELER
                                   Panel Chair