RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2009-00277
COUNSEL: NO
HEARING DESIRED: NO
________________________________________________________________
APPLICANT REQUESTS THAT:
He receive Aviation Continuation Pay (ACP) for Fiscal Year 2008 (FY08) for active duty flying service in support of Operation Iraqi Freedom (OIF).
________________________________________________________________
APPLICANT CONTENDS THAT:
Under the terms of the program, he should have received $15,000 for being on active duty flying status for 458 consecutive days with the Mississippi Air National Guard (ANG). The paperwork was rejected without justification. The individual who submitted the paperwork left the unit without following up. Under the terms of the FY08 ACP, he qualifies for the one year bonus.
In support of his request, applicant submits copies of his ACP Agreement, his aeronautical order and extracts from the FY07 ACP Implementation Policy and Special Orders R-B00027, R-C000269 and R-C000164.
His complete submission, with attachments, is at Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
He was commissioned on 31 May 1995 and has been progressively promoted to the grade of major having assumed that grade effective and with a date of rank of 1 August 2005.
________________________________________________________________
AIR FORCE EVALUATION:
HQ ANG/A1FF recommends denial. A1FF states the applicant was initially ordered to duty 1 July 2007 through 30 September 2007 based on an order dated 30 May 2007. Through two amendments to his original order he was eventually ordered to duty for more than one full year. USC Title 37, section 301b requires the member to agree in advance, in writing to remain on active duty in aviation service for at least one year. To maintain the integrity of the ANGs ACP program, NGB/JA, NGB/FM, and NGB/A1PF agreed that the only way to ensure that commitment is for the member to be ordered to duty on an order encompassing a period of no less than one full year. Additionally, it has been determined that members cannot fall into eligibility based on eventually completing one year of duty under multiple amendments or sets of orders. ACP must be agreed to up front, paid in advance and backdating of agreements has been deemed illegal by a reading from SAF/GC.
The complete A1FF evaluation is at Exhibit B.
NGB/A1PS recommends denial. A1PS states they concur with the subject matter expert.
The complete A1PS evaluation is at Exhibit C.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the applicant on 20 February 2009 for review and comment within 30 days. As of this date, this office has received no response (Exhibit D).
________________________________________________________________
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 do not find his contentions sufficiently persuasive to override the rationale provided by the Air Force office of primary responsibility. We note the ACP Agreement signed by the applicant states I understand and agree that the effective date of this agreement is 1 July 2007. I realize this agreement is binding from the date of my signature or publication of my new/amended AGR/statutory tour orders, whichever is later. The publication and effective date of his amended orders is 21 May 2008, not 1 July 2007. Although the applicant did serve on active duty for 458 consecutive days; the Board majority believes to subsequently provide benefits on the basis of error or miscounsling without sufficient evidence would be unfair to others similarly situated and establish a basis for circumventing the procedures in place. Therefore, in the absence of sufficient evidence to the contrary, the Board majority finds no basis to recommend granting the requested relief. Therefore, we adopt the rationale expressed as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Absent persuasive evidence that he was denied rights to which he was entitled, we find no compelling basis to recommend granting the relief sought in this application.
______________________________________________________________
THE BOARD DETERMINED THAT:
The applicant be notified that the evidence presented did not demonstrate the existence of 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 the application.
_______________________________________________________________
The following members of the Board considered Docket Number BC-2009-00277 in Executive Session on 12 May 2009 and 17 June 2009, under the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
By a majority vote, the Board voted to deny the request. XXXXX voted to correct the record and submitted a minority report. The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 8 January 2009, w/atchs.
Exhibit B. Letter NGB/A1FF, not dated.
Exhibit C. Letter NGB/A1PS, dated 15 February 2009.
Exhibit D. Letter SAF/MRBR, dated 20 February 2009.
Exhibit E. Minority Report, dated XX June 2009.
Panel Chair
3
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