RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-00220
            INDEX NUMBER:  128.00

      XXXXXXXXXXXX     COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

_______________________________________________________________

APPLICANT REQUESTS THAT:

He be paid separation allowance based on his separation  from  the  Air
Force in Oct 1999.  He also requests that the recoupment of his aviator
continuation pay (ACP) be waived.

_______________________________________________________________

APPLICANT CONTENDS THAT:

He only signed for the ACP agreement because he was told if  he  didn’t
he would be assigned to Korea as an Army liaison officer.

Although he signed the ACP agreement, he planned to turn down promotion
to major and separate in 1998, but before he had  the  chance  to  turn
down major, the rules changed.  After  that,  he  planned  to  write  a
letter to the board requesting not to be promoted and to  transfer  his
commitment to the Air National Guard under the FY98 Limited Active Duty
Service Commitment (LADSC) program.  He wrote his letter, got hired  by
the Utah Air National Guard, but before he could apply  for  the  LADSC
waiver, the program closed out early.  He  had  been  passed  over  for
major, but the board  results  were  not  announced  before  the  LADSC
program closed out, making him ineligible to apply.  His plan  now  was
to get passed over again, take the separation  allowance  and  just  be
done.  Before his second board met, the rules changed  making  officers
that wrote the board to decline  promotion  ineligible  for  separation
allowance.  He had already ended any chance of  a  career  due  to  his
efforts to separate over the past year and  was  beyond  the  point  of
return.  He  wrote  the  letter  requesting  not  to  be  promoted  and
separated in Oct 1999.  As a twice deferred officer, he was  ineligible
to serve in the  “points  only”  job  that  would  have  earned  him  a
retirement from the Reserves.

In addition to receiving no separation allowance, and being  ineligible
to qualify for a Reserve retirement, he is also being  billed  for  the
“unused portion” of his ACP  bonus.   His  research  of  DOD  Financial
Management Regulation (DOD FMR), Volume 7A, Chapter 15, paragraph  1505
and subparagraph 150501 that governs repayment  of  the  bonus  reveals
that recoupment is not required.

The applicant’s complete submission is at Exhibit C.

_______________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty on 5 May 1988 and  separated  in  the
grade of captain on 10  Oct  99  after  being  twice  passed  over  for
promotion to major.  As a result of an ACP agreement he entered into on
10 May 96, the applicant was required to repay `$16,642.85 in  unearned
ACP.  The applicant was offered selective continuation after his second
non-selection to major, but refused.  Consequently, he was not eligible
for a separation allowance.

_______________________________________________________________

AIR FORCE EVALUATION:

The  Chief,  Aviation  Continuation  Pay,  AFPC/DPAOY  evaluated   this
application and recommends denial of the applicant’s request.

Changes in separation and entitlement regulations/instructions have  no
bearing  on  the  decision  to  recoup  the  unearned  portion  of  the
applicant’s ACP.  The  fact  that  the  Air  Force  changed  separation
instructions to thwart  members  from  “gaming  the  system”  regarding
separation pay does not change the applicant’s  status  under  his  ACP
agreement.  The applicant was offered continuation on active duty after
his second non-selection, but voluntarily  chose  to  separate.   Under
this circumstance, AFI 36-3004 requires that the  unearned  portion  of
the ACP be recouped.  The applicant’s treatment  after  separation  was
consistent with standard separation practices.

The complete evaluation is at Exhibit C.

The  Separation  Procedures   Section,   AFPC/DPPRS,   evaluated   this
application and recommends denial of the applicant’s request.

Based on the documentation in the file, they  believe  the  applicant’s
separation  to  be  consistent  with  the  procedural  and  substantive
requirements of the discharge regulation.  HQ AFPC/DPP 291249Z  Oct  98
message stated that the National Defense Authorization Act  became  law
on 17 Oct 98.  It was effective for all boards  convened  on  or  after
that date.  The law mandated  that  “officers  twice  non-selected  for
promotion to the next higher grade are not, repeat are not, entitled to
separation pay if either or both of those non-selections for  promotion
resulted from an officer who requested in writing not to be selected or
who   otherwise   directly   caused   non-selection   through   written
communication to the board (U.S.C. 10, Section 1174a).”  This change in
law was widely publicized in national, local, and base publications.

The complete evaluation is at Exhibit D.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the evaluations and  states  that  they  are
essentially correct, but incomplete.  He  states  that  the  constantly
changing set of  rules  associated  with  personnel  actions  governing
separations have caused him financial hardship, which  the  evaluations
did not address.  He states that  the  bottom  line  is  that  he  took
actions to separate that  were  within  the  bounds  of  the  governing
regulations  only  to  have  the  regulations  change  prior   to   his
application for separation being processed.   He  states  that  he  has
repaid his ACP bonus  debt  with  interest,  but  is  still  requesting
separation allowance.  He has attached a talking paper he  states  that
shows the effect of changing regulations on his separation.

The 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.  We took  notice  of  the
applicant's complete submission in judging  the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air  Force
offices of primary responsibility and  adopt  their  rationale  as  the
basis for our conclusion that the applicant has not been the victim  of
an error or injustice.  Therefore, in the absence of  evidence  to  the
contrary, we find no compelling basis 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 19 July 2001, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Vice Chair
      Mr. Steven A. Shaw, Member
      Ms. Barbara J. White-Olson, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Jan 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPAOY, dated 5 Mar 01.
    Exhibit D.  Memorandum, AFPC/DPPRS, dated 17 Apr 01.
    Exhibit E.  Letter, SAF/MIBR, dated 11 May 01.
    Exhibit F.  Letter, Applicant, 20 May 01.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair