RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00129
            INDEX CODE:  128.10

            COUNSEL:  NONE

            HEARING DESIRED: YES


MANDATORY CASE COMPLETION DATE:  7 July 2006



_________________________________________________________________

APPLICANT REQUESTS THAT:

The Air Force’s decision to recoup  conditional  Aviation  Career  Pay
(ACIP) (sic) in the amount of $23,958.33 be rescinded.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He contends part of the ACIP ($10,021) was recouped in April/May 2003.
 The rest is currently being withdrawn with interest from his  federal
civilian paycheck beginning 15 January 2005.  He contends he submitted
a waiver of Active Duty Service Commitment (ADSC) that was  signed  by
the 12th Air Force commander.  Around the  time  his  ACIP  was  being
recouped, he continued to maintain currency and qualification in  both
the A-10 fighter and the C-130J aircraft.  He continues  to  fly  both
aircraft in active and in military  technician  status  with  the  Air
National Guard  (ANG).   He  continues  to  meet  DoD  and  Air  Force
Instruction (AFI) criteria for  eligibility  of  both  continuous  and
conditional flight pay.  The Secretary  of  the  Air  Force  Personnel
Council (SAF/PC) stated they approved  his  ADSC  waiver  as  written.
Further, SAF/PC did not question his eligibility to receive ACIP, only
that the bill was being charged to the Air Force and not the  National
Guard Bureau (NGB).  He contends the recoupment was likely the  result
of an administrative error in  which  a  standard  Palace  Chase  form
letter was sent to the Defense Finance and Accounting  Service  (DFAS)
by the Air Force Senior Leader Management Office (AFSLMO).  AFLSMO was
not aware of the ADSC waiver or of its approval by SAF/PC.   In  fact,
the Palace Chase form letter  inferred  SAF/PC  had  denied  the  ADSC
waiver.

After 18  months  of  research,  he  is  now  aware  that  SAF/PC,  on
14 November 2002, made a unilateral decision  to  terminate  the  ADSC
rather than accept the ADSC waiver request.  He has confirmed that the
ADSC waiver was received and reviewed by SAF/PC.   Their  decision  to
terminate the ADSC and ACIP was not communicated to him, the 12th  Air
Force commander or the Adjutant General for the State of Maryland  who
assisted in the ADSC waiver request.

After initially receiving word the ADSC waiver had  been  approved  by
SAF/PC the recoupment action by the Air Force was not only  unexpected
but it created a significant  financial  hardship  at  the  time.   He
contends the active duty cost savings from his voluntary forfeiture of
retirement pay exceeds $96,000 and by the time he is  eligible  for  a
Reserve retirement at age 60 the cost  savings  will  have  been  over
$800,000, not including healthcare costs.

In  support  of  his  appeal,  the  applicant  has  provided  personal
statements, letters of support from his ANG chain of  command,  copies
of his ADSC waiver request and  SAF/PC  response,  his  DD  Form  214,
Certificate of Release or Discharge from Active Duty,  a  sequence  of
events timeline, and several email trails.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant a former Air Force pilot  and  current  military  technician
member of the Maryland Air National Guard (MDANG) began  his  military
career on 30 June 1975 and began active duty with the Air Force on  30
May 1979.  He served over 23 years in the Air Force before joining the
MDANG in December 2002.  As he had served over 20 years of active duty
when he left the Air Force to serve with the MDANG,  he  was  eligible
for a 20-year retirement.  He set aside the 20-year retirement  opting
instead to continue his military career in the  MDANG  as  a  fulltime
military technician.  Additionally, prior to his separation  from  the
Air Force, he had submitted a waiver request to SAF/PC asking that his
ADSC be waived for the purpose of joining the MDANG.  SAF/PC  approved
his request for waiver of his remaining  ADSC  on  15  November  2002.
However, SAF/PC  determined  he  was  required  to  reimburse  the  US
Government for the  unearned  portion  of  his  Aviation  Continuation
Incentive Pay (ACIP).  He is currently serving as  a  colonel  in  the
MDANG with over 26 years of active and Reserve service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPAO notes the applicant’s and  others’  misuse  of  the  acronym
ACIP.  ACIP does not stand for Aviation Continuation Incentive Pay  or
as it is sometimes referred  to  as  the  “Bonus.”   ACIP  stands  for
Aviation Career Incentive Pay and is normally referred  to  as  Flight
Pay.  Aviator Continuation Pay (ACP) is the correct name  and  acronym
to use when referring to what is commonly called  “the  pilot  bonus.”
DPAO contends he requested two waiver actions: a waiver for  his  ADSC
and a waiver to the  standard  separation  processing  timelines.   He
never  requested   any   waiver   to,   or   forgiveness   from,   the
forgiveness/recoupment of debt of unearned ACP monies.  DPAO  contends
he should have been aware of the requirement for recoupment of Aviator
Continuation Pay (ACP) as he signed an agreement on 23  December  1999
that specifically stated his understanding that should he leave  rated
service with the Air Force, his entitlement to ACP would stop and  the
unearned portion  of  ACP  would  be  considered  a  debt  to  the  US
Government and would be recouped on a pro rata  basis.   Additionally,
he should have been aware of  Air  Force  Instruction  (AFI)  36-3004,
which sets eligibility requirements and governs aviator bonus programs
for all US Air Force pilots.  This Instruction does not  apply  to  US
Air Force Reserve,  Air  National  Guard,  or  Medical  Service  Corps
officers.  DPAO notes  that  monies  under  the  active  duty  program
elements cannot be paid to non-active duty members or entities.

DPAO notes its difficulty in understanding the  exact  nature  of  his
request.  DPAO states while ACP recoupment appears to  be  the  issue,
there are too many references to ACIP, or flight pay, to  legally  and
assuredly recommend action on this case.  That said, DPAO  states  the
ACP recoupment was in accordance with law and directives  that  govern
the ACP program and that according to  DFAS,  ACP  recoupment  is  not
waiverable.  DPAO notes the applicant  was  unaware  that  ACP  monies
would be recouped.  There is no AFPC waiverable authority  to  rescind
the recoupment action or to continue the Active Duty ACP program for a
rated officer in the ANG.   DPAO  states  they  cannot  suspend  legal
direction to grant his request.  DPAO believes this  issue  is  up  to
DFAS to determine or resolve.

DPAO’s complete evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 5
August 2005 for review and comment within 30 days.  As of  this  date,
no response has been received by this office.

_________________________________________________________________

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 an  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
office of primary responsibility and adopt its rationale as the  basis
for our conclusion that the applicant has not been the  victim  of  an
error or injustice.  The  Board  took  note  that  two  acronyms  ACIP
(Aviation Continuation Incentive Pay – Flight Pay) and  ACP  (Aviation
Continuation Pay – Flight Bonus Pay) were misunderstood  or  at  least
misused  throughout  the  application.   On  23  December  1999,   the
applicant signed an ACP agreement to serve until 19 September 2004 and
indicated his understanding that should he not fulfill the requirement
of the contract, the Government would recoup, on a  pro  rated  basis,
any monies he did not earn as a result of defaulting on  the  original
agreement.  Furthermore, according to the Defense  Finance  Accounting
Service (DFAS), ACP recoupment is not waiverable.  He further contends
he, nor his ANG rating chain, were notified by SAF/PC  that  his  ADSC
waiver  had  been  approved,  and  perhaps  most   importantly,   that
recoupment action of the ACP would begin.  However, the  record  shows
SAF/PC had reviewed and decided his request within  one  week  of  its
submission on 8 November 2002.  While we note he  has  maintained  his
qualification in dual weapon systems as a rated officer and  continues
to receive ACIP, there are no provisions to allow him to  receive  ACP
as a dual status military technician in the ANG.   Therefore,  in  the
absence of evidence to the contrary, we find no  compelling  basis  to
recommend granting the relief sought in this application.

4.  The 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  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

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 AFBCMR Docket Number BC-
2005-00129  in  Executive  Session  on  25  October  2005,  under  the
provisions of AFI 36-2603:

      Mr. John B. Hennessey, Panel Chair
      Ms. Janet I. Hassan, Member
      Ms. LeLoy W. Cottrell, Member





The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Nov 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPAO, dated 1 Aug 05, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 5 Aug 05.




                                   JOHN B. HENNESSEY
                                   Panel Chair