RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2009-04140
			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:

Current DOD, AF, and ANG policies regarding military end strength 
numbers and ACP unintentionally fail to reward ANG aviators who 
are prevented from signing one-year active duty orders in FY08 and 
FY09.  Due to DOD end strength numbers, the end date on these 
orders were initially limited to 1 Sep 09 and were subsequently 
extended to 30 Sep 09 later in the year, for those aviators whose 
1,095 day rule was waived.  However, ANG ACP policy has always 
been to exclude those aviators not on one continuous order for at 
least one year.  Those aviators limited by the 1,095 day rule do 
not meet that requirement or the requirement to apply for ACP 
within one month of the effective date of their orders.  

The intent of ACP is to reward aviators who volunteer for at least 
one-year active duty tours.  Aviators whose orders are limited by 
the 1,095 day rule do not meet the ANG requirements to participate 
in ACP through no fault of their own.  

In order to fairly fulfill the intent of the ACP policy, a 
corrective action needs to be implemented to allow those aviators 
who would have received one year orders but were initially limited 
to 11 month orders due to the 1,095 day rule.  Their orders were 
later extended to one year after receiving a 1,095 day rule 
waiver.

In support of his appeal, the applicant provides a personal 
statement and 12 attachments that include excerpts from the United 
States Code (U.S.C.) and National Defense Authorization Acts 
(NDAA), SAF/MR end strength messages, ANG FY09 ACP Implementation 
Policy, his active duty orders, ACP contract, and his Aeronautical 
Order.   

Applicant’s 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 New Hampshire ANG 
(NHANG) in the grade of lieutenant colonel and has Total Active 
Federal Military Service (TAFMS) of 19 years, 3 months and 
22 days.  His Aeronautical Service Date (ASD) is 30 Apr 92, 
yielding 18 Years of Aviation Service (YAS).

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 applicant’s FY09 orders were amended several times during the 
year prior to his waiver request.  

_________________________________________________________________

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 has been in force since FY04 and 
has been applied consistently to all ANG aviators since that 
time.  In this regard, no evidence has been provided that 
indicates he has been treated any differently than others who 
were similarly situated.  It is our view that the mere intent of 
an applicant to serve a full, uninterrupted year does not meet 
the burden of showing an error or injustice.  It appears the 
applicant was aware of the 1,095 day rule and what impact it 
would have on his ACP eligibility – waiver notwithstanding.  
Additionally, we find that the incidence of a law or policy that 
impacts another law or policy resulting in an undesirable 
outcome does not necessarily produce an error or injustice.  
Absent evidence showing he was either misled or miscounseled or 
that the Air National Guard erred in some way that wrongly 
disqualified him from ACP participation, we can find no error or 
injustice in this case.  As an aside, it appears the applicant’s 
orders had been modified during the 11 months he was on duty 
prior to applying for a waiver which would have disqualified him 
from the FY09 ACP program regardless of whether or not the 1,095 
day rule applied to him.  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-2009-04140 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