RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02306
            INDEX NUMBER:  128.04
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

He not be required to repay the Aviation Continuation  Pay  (ACP)  and
Tuition Assistance he received while on active duty.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He should still be eligible for his ACP since he transferred to a full
time position with the Air National Guard (ANG) and will be performing
the  same  duties  that  qualified  him  for  ACP  on   active   duty.
Additionally, because he is on continuum of service  orders,  he  will
not be eligible for a bonus in the ANG, eliminating any possibility of
“double dipping.”

His continued education is a long term and direct benefit to  the  Air
Force’s “Total Force” making  recoupment  of  his  tuition  assistance
unwarranted.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant voluntarily transferred from the Regular Air  Force  (RegAF)
under Palace Chase to the ANG on 21 Sep 04 in the grade of major.   He
is presently serving an ANG active duty tour.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPAOY recommends the applicant’s requests be denied.  The  active
duty ACP program is exclusively for active duty  Air  Force  aviators.
As such, personnel transitioning  to  another  branch  must  have  the
active duty service commitment (ADSC) for their ACP  agreement  waived
by the Secretary of the Air  Force  (SecAF).   AFI  36-3004,  “Aviator
Continuation Pay,” 24 Feb 00 is the governing instruction for the ADSC
waiver  and  is   complemented   by   AFI       36-3207,   “Separating
Commissioned Officers,” 9 Jun 04.

AFI 36-3207, paragraph 1.15, “Recoupment Requirement,” states the  Air
Force  normally  requires  recoupment  of  a  portion   of   education
assistance,  special  pay,  or  bonus  money  received  when  officers
separate before completing the period of active duty  they  agreed  to
serve.   Paragraph  1.16.2  states,  “If   the   officer   voluntarily
separates, the officer is  subject  to  recoupment  of  a  portion  of
education assistance, special pay,  or  bonus  money  received.   They
point out that paragraph 2.2, “Recoupment,” states  officers  will  be
advised that if the SecAF approves  their  request  for  release  from
active duty or accepts their resignations,  they  may  be  subject  to
recoupment of a portion  of  education  assistance,  special  pay,  or
bonuses received if they  leave  active  duty  before  completing  the
period of active duty they agreed to serve.

The applicant signed his ACP agreement on 9 Apr 02 and was well  aware
of its terms.  Paragraph 5e of the agreement  advises  that  voluntary
retirement or separation prior to completion of the  ACP  ADSC  is  an
action that would stop his ACP entitlement and  the  unearned  portion
paid to him would be considered a debt to the United States Government
and would be recouped on a pro rata basis.  AFPC/DPAOY also  discusses
that under the Air Force’s “Force Shaping Program,” recoupment is  not
waived for ACP and that tuition assistance is not waived for transfers
to Palace Chase.

The complete evaluation is at Exhibit C.

AFPC/DPPAT evaluated the applicant’s request for waiver of  recoupment
of tuition assistance he received.  They recommend denial.  They  note
that Title 10, US Code, Section 2007, requires an officer to remain on
active duty for a period of at least two years after the completion of
the training or education for which the charges are paid.

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force  evaluations,  applicant  states  the
evaluations  contain  several  inaccuracies  making  their  conclusion
flawed.  He states the bulk of the guidance referenced deals with  the
Force Shaping program and that he did not leave active duty under this
program.  He does  not  believe  this  guidance  is  relevant  to  the
circumstances of his case.

The applicant states the ACP is not exclusive to active duty  aviators
in the context as it is intended.  He states  there  are  active  duty
Reserve and Guard  pilots  who  are  paid  the  same  bonuses  he  was
receiving.  He is serving  in  a  new  category  called  Continuum  of
Service orders.  On these orders, he is not eligible for a  new  bonus
and poses no danger of getting  into  a  “double  dip”  scenario.   He
opines that if he had separated without orders  or  left  the  service
altogether, there would be no doubt recoupment is warranted.  However,
he is still on active duty orders flying F-16s,  just  not  performing
some of the duties he performed before.  He notes  the  ACP  agreement
states ACP  “may”  be  recouped  and  is  therefore  not  required  as
indicated in the evaluation.

In regards to the requirement to serve at least two  years  on  active
duty  for  tuition  assistance  received,  he   will   complete   this
requirement mid-way through his current year of  active  duty  orders.
He believes  the  circumstances  of  his  transition  to  his  current
position and the fact he  is  still  on  active  duty  and  filling  a
critical position in support of ONE tasking make his case  a  suitable
one for waiver of recoupment.

Applicant’s complete response, with attachment, 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  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinions and  recommendations  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.  While the discussion on  the  “Force
Shaping Program” may not be applicable  to  the  applicant’s  specific
circumstance, the examples of recoupment pointed out  illustrate  that
recoupment is the norm under circumstances similar to the applicant’s.
 Additionally, we note the applicant’s decision to  change  components
was voluntary.  In our view of the applicable directives referenced in
this application, we believe one would most likely be led to  conclude
that their ACP payments  and  tuition  assistance  would  be  recouped
rather than not.  We further conclude the applicant  was  sufficiently
placed on  notice  of  the  possible  consequences  of  his  voluntary
decision to transfer to the  Air  National  Guard  and  is  not  being
treated differently than anyone else similarly  situated.   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 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 Docket  Number  BC-2004-
02306 in Executive Session on 2 February 2005, under the provisions of
AFI 36-2603:

      Mr. Roscoe Hinton, Jr., Panel Chair
      Mr. Vance E. Lineberger, Member
      Mr. Wallace F. Beard, Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Jul 04.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPAOY, dated 11 Aug 04.
    Exhibit D.  Memorandum, AFPC/DPPAT, dated 7 Sep 04.
    Exhibit E.  Letter, SAF/MRBR, dated 17 Sep 04.
    Exhibit F.  Letter, Applicant, dated 10 Oct 04.




                                   ROSCOE HINTON, JR.
                                   Panel Chair