RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2009-04137
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to show his eligibility for Fiscal Year
2009 (FY09) Air National Guard (ANG) Aviator Continuation Pay
(ACP) program.
_________________________________________________________________
APPLICANT CONTENDS THAT:
He signed an ACP contract in good faith to serve for an entire
year. It was only because of the 1,095 day rule that his orders
were not cut for an entire year. Even though his orders were
amended after a 1,095-day waiver was approved, he was still not
eligible. The injustice in this case is that he served the entire
year commitment, as other ACP recipients did, but he was not paid
due to legal limitations imposed on the ACP program by a separate
and distinct law; the 1,095-day rule.
In support of his appeal, the applicant provides copies of his
active duty orders, his FY09 ACP agreement, and pertinent
electronic communications.
Applicants complete submission is attached.
_________________________________________________________________
STATEMENT OF FACTS:
ANG personnel are limited to serving cumulative periods of active
duty and full-time National Guard duty not to exceed 1,095 days in
the previous 1,460 days. The 1,095 day rule can be waived and the
orders of those ANG aviators who will exceed the 1,095 day rule
during a tour of active duty are generally limited to less than a
year until such time as they have been approved for a waiver. The
1,095 day rule limits otherwise willing aviators to less than a
continuous year of service thereby, making them ineligible to
participate in the ANG ACP program for that particular year.
Applicant is currently serving in with the Maine ANG (MEANG) in
the grade of lieutenant colonel and has an Aeronautical Service
Date (ASD) of 17 Jul 87, yielding approximately 21 Years of
Aviation Service (YAS) and TAFMS of just over 13 years for FY09
eligibility.
ANG eligibility requirements for the FY09 ACP program required
aviators to be on active duty orders cut for one continuous,
uninterrupted year. Original orders issued for periods of duty of
less than one year disqualified aviators from ACP participation.
Further, orders issued for periods of less than one year that were
later amended or modified to total a year of service, were also
not acceptable. Additional requirements include that the aviator
have less than 19 years TAFMS, have less than 24 YAS at
application, and make application for ACP within 30 days of
beginning their tour.
_________________________________________________________________
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 note that, as an incentive-based program
(as opposed to an entitlement), the ACP requirement that
aviators perform active duty on orders that reflect one
continuous, uninterrupted year is a valid condition of
eligibility. Regardless of his intent, the applicant was simply
not able to meet the ANG FY09 ACP requirements and accordingly
is not eligible to participate in the FY09 ACP program. It
appears the applicant was aware of the 1,095 day rule and what
impact it would have on his ACP eligibility waiver
notwithstanding. Consequently, we find that the incidence of a
law or policy that impacts another that results in a negative
outcome does not necessarily produce an error or injustice.
Moreover, there has been no showing that he has been treated any
differently than others who were similarly situated. Absent
evidence showing he was either misled or miscounseled or that
the Air National Guard erred in some way that wrongly kept him
from qualifying for ACP, we can find no error or injustice in
this case. Therefore, in the absence of evidence to the
contrary, we find no 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 AFBCMR Docket Number
BC-2009-04137 in Executive Session on 2 September 2010, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit: DD Form 149, dated, w/atchs.
Panel Chair
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