ADDENDUM TO 

RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-03700 

 

 COUNSEL: 

 

 HEARING DESIRED: NO 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His records be corrected to show his eligibility to participate 
in the Fiscal Year 2006 (FY06) Air National Guard (ANG) Aviator 

Continuation Pay (ACP) program. 

 

________________________________________________________________ 

 

RESUME OF CASE: 

 

On 26 Jul 11, the Board considered and denied the applicant’s 
request to be eligible to participate in the FY06 ANG ACP 
program, contending that he was not informed of the tenets of 
the program when he began his active duty tour. However, after 
a thorough review of the available evidence, the Board found the 
applicant was ineligible to execute such an agreement as he 
signed a four-year ACP contract, rather than the five-year 
contract required for aviators who, such as he, had less than 
20 years of aviation service. For a complete accounting of the 
facts and circumstances of the case and the rationale for the 
Board’s decision, see the Record of Proceedings (ROP) at 
Exhibit B. The applicant was notified of the Board’s decision 
via a notification letter dated 25 Apr 11. 

 

By virtue of a letter dated 27 Jan 12, with attachments, the 
applicant requests reconsideration of his case, indicating that 
he ultimately served on active duty for more than five years in 
accordance with the terms of the FY06 ACP policy. In support of 
his request, the applicant provides an expanded statement and 
copies of his active duty orders, an amendment thereto, and an 
unexecuted ACP agreement (Exhibit C). 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

NGB/A1PF recommends denial, indicating there is no evidence of 
an error or injustice. The applicant’s original request was 
denied by the Board due to the fact that he was only on 4-year 
active duty orders instead of 5-year orders. While it appears 
as though he eventually served for five years and the program in 


effect at the time allowed for statutory tour officers on four-
year orders to sign a five-year ACP agreement, provided they 
eventually served for the duration of the five-year agreement, 
the applicant remains ineligible for ACP under the FY06 program 
because he did not occupy a qualifying position during the 
matter under review. According to the FY06 ANG ACP policy, in 
order for members to be eligible to apply for ACP, they must be 
qualified for operational flying and, in accordance with the 
definition of aviation service, must be professionally and 
physically qualified and on aeronautical orders requiring 
frequent and regular flight. However, according to the orders 
provided, the applicant was assigned to a position with an 
Aircrew Position Identifier (API) of 0 (zero), which is a non-
rated and non-flying position as referenced in AFI 11-401, Aviation Management. Members assigned to such positions were 
not eligible to participate in ACP until the FY11 program. 

 

A complete copy of the NGB/A1PF evaluation is at Exhibit D. 

 

________________________________________________________________ 

 

APPLICANT’S REVIEW OF AIR FORCE EVALUATION: 

 

Counsel urges equitable resolution of the applicant’s request 
based on the evidence provided which indicates he would have 
fulfilled the term of a five-year ACP agreement, which, 
according to the NGB advisory, would make him eligible for ACP 
were it not for the belatedly-raised API 0 issue. Counsel 
refutes NGB’s assertion that members in API 0 billets were not 
eligible to apply for ACP prior to FY11 and cites two decisions, 
one by the Board (BC-2009-02784), and another by the Director of 
the Air National Guard, where such members were retroactively 
approved for ACP for pre-FY11 service. Additionally, cursory 
statutory analysis confirms the written ACP implementation 
policy never excluded API 0 billets. Nothing in the US Code or 
ACP implementing regulations distinguished or excluded API 0 
billets and, as noted above, the Director, ANG and this Board 
have granted retroactive ACP to API 0 billeted pilots 
accordingly. Not only did the written ACP language never 
exclude API 0 members, but the policy behind the program 
logically demands their inclusion given that it is a force 
management tool designed to "enable leaders to develop balanced, 
trained and experienced forces” of professionals in critical 
career fields. The Air Force retained the applicant’s 
expertise, regardless of his API coding-exactly the purpose of 
the ACP program—and the applicant is simply seeking equitable 
application of the ACP program. Excluding him, when the written 
ACP program never excluded officers occupying API 0 positions 
and when the AFBCMR and the Director of the ANG approved it 
retroactively for other API 0 billeted pilots' pre-FYll service, 
would be a discriminatory application causing error and 
injustice. 

 

 


A complete copy of Counsel’s response, with attachments, is at 
Exhibit F. 

 

________________________________________________________________ 

 

ADDITIONAL AIR FORCE EVALUATION: 

 

NGB/A1PF recommends denial, indicating there is no evidence of 
an error or injustice. The ANG’s ACP policies from FY05 through 
FY10 are consistent and, as applied, did not include API 0 coded 
positions. Said policy remained in effect through the execution 
of FY10 and it was not until two members in FY10 appealed to the 
Director, ANG that this policy was reevaluated. No ACP 
applications from previous years were approved and the two cited 
cases were approved as an exception to policy. These requests 
initiated an ACP policy review which ultimately resulted in the 
change of the FY11 policy to include members in API 0 billets. 
However, the approval of these two cases signaled a future 
change and not a retroactive one; the previous policies remained 
in effect as written. 

 

A complete copy of the NGB/A1PF evaluation is at Exhibit G. 

 

________________________________________________________________ 

 

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

 

Counsel reiterates her argument that the equities demand 
corrective action in her client’s case, given that similar 
requests by other API 0 pilots for retroactive, pre-FY11 ACP 
were approved by the Director, ANG and the AFBCMR. Excluding 
the applicant when the written program never excluded API 0 
officers and in view of the noted decisions, would be a 
discriminatory application causing an error and injustice. 
Counsel refutes the NGB position that the two pre-FY11 approvals 
by the Director, ANG constitute exceptions to policy (ETP); 
characterizing these decisions as ETP rationalizes improper or 
inconsistent application of the policy pertaining to those API 0 
aviators prior to FY11. Further, NGB does not dispute that the 
ACP policy as written never excluded API 0 pilots as the 
Director ANG concluded by approving ACP for some of them in 
2010. API 0 pilots like the applicant were eligible, did apply, 
and were approved for retroactive ACP for pre-FY11 service—all 
belying the unequivocal statement contained in the initial NGB 
advisory that “Until the policy was changed in FY11, pilots in 
API 0 billets were not eligible to apply for ACP.” NGB has 
articulated no conceivable reason for why other retroactive ACP 
approvals do not create precedence for retroactive approval of 
ACP here, nor how an “exception to policy” for others could 
justify disparate treatment here. One of the objectives of the 
AFBCMR is to ensure the consistent, equitable application of Air 
Force programs, achieved only by similar approval here. 

 

A complete copy of Counsel’s response, including attachments is 
at Exhibit I. 


The applicant also provides a response indicating that NGB has 
conceded he met the length of service requirements which formed 
the initial basis for the Board’s denial in his case, NGB policy 
never excluded API 0 pilots, and the AFBCMR and Director, ANG 
have approved ACP for similarly situated pilots prior to FY11 in 
contravention to NGB’s stated position. The applicant contends 
that other retroactive ACP approvals for API 0 pilots occurred 
because the Director, ANG concluded, after intensive inquiry, 
discussion, and analysis, that API 0 pilots could not be 
discriminated against pursuant to the written ACP program, the 
language of which never exclude API 0 pilots from eligibility. 

 

A complete copy of the applicant’s response, with attachments, 
is at Exhibit J. 

 

________________________________________________________________ 

 

THE BOARD CONCLUDES THAT: 

 

1. After again reviewing this application and the evidence 
provided in support of his request, we remain unconvinced the 
applicant has been the victim of an error or injustice. The 
applicant and his Counsel argue that because our initial denial 
in this case rested on the fact the applicant was unable to 
execute a five-year aviator continuation pay (ACP) agreement, 
and the applicant has since served the requisite five years, 
that his record should be corrected to reflect he executed such 
an agreement. However, since the applicant was ineligible to 
execute such an agreement due to the fact he occupied an API 0 
position during the matter under review, regardless whether this 
issue was “belatedly raised,” we remain unconvinced that any 
action is warranted. While Counsel argues that relief should be 
granted because the noted exclusion of API 0 officers was not 
explicitly spelled out in the governing statute or in the ACP 
policy, we do not find this argument sufficient to rule in the 
applicant’s favor. In this respect, we note the comments of 
NGB/A1PF indicating that in order for members to be eligible to 
apply for ACP, they must, among other things, be on aeronautical 
orders requiring frequent and regular flight; however, the 
applicant’s API 0 position did not require him to perform 
frequent and regular flight and he was therefore ineligible to 
apply for ACP when he commenced his statutory tour. While both 
Counsel and the applicant argue that the equities demand 
approval of his request, citing two occasions in 2010 where the 
Director of the Air National Guard (DANG) granted exceptions to 
this policy, we do not find this argument sufficient to conclude 
the applicant is the victim of an error or injustice. In this 
respect, we note the applicant has presented no evidence 
whatsoever to indicate the decisions of the DANG in the noted 
cases were arbitrary, capricious, or represented an abuse of his 
discretionary authority. While the applicant and his counsel 
speculate these decisions were motivated by a desire to ensure 
that API 0 pilots could no longer be discriminated against, 
speculation is not evidence of an error or injustice. Moreover, 
we do not find these arguments sufficient to conclude that the 


Air National Guard’s ACP policy was discriminatory, nor do we 
find them sufficient to overcome the presumption of regularity 
in the conduct of government affairs which dictates that in the 
absence of evidence to the contrary, we must assume the DANG’s 
decisions to exclude API 0 aviators from ACP eligibility in the 
years leading up to the noted exceptions to policy and 
subsequent policy change were the legitimate exercise of his 
discretionary authority and was based on the operational needs 
of the ANG during the matter under review. Consequently, we are 
not convinced that we should, years after the fact, conclude 
that circumstances should have dictated the applicant, and those 
similarly situated, should have been offered ACP to secure their 
continued service when it is clear the use of ACP, which is a 
retention bonus and not an entitlement, was not necessary to do 
so. Counsel also argues that this Board has previously granted 
relief in a similar case, essentially asserting that similar 
consideration should be applied to the applicant’s case and the 
requested relief should be granted. We disagree. In this 
respect, we note that each case before this Board is considered 
on its own merits, based on the information available to us at 
the time, and precedent does not bind us. While we do strive 
for consistency in the manner in which evidence is evaluated and 
analyzed, we are not bound to recommend relief in one 
circumstance simply because the situation being reviewed appears 
similar to another case. While the Board did grant relief in 
the noted case, the Board was, for whatever reason, forced to 
deliberate said case without the benefit of an advisory from the 
National Guard Bureau and, thus, not made aware that API 0 
officers were precluded from applying for ACP. While the 
applicant’s arguments are duly noted, we are not convinced that 
he is the victim of an error or injustice. Therefore, in the 
absence of evidence to the contrary, we find no basis to 
recommend granting the requested relief. 

 

2. 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 issues involved. 
Therefore, the request for a hearing is not favorably 
considered. 

 

________________________________________________________________ 

 

THE BOARD DETERMINES THAT: 

 

The applicant be notified the evidence presented did not 
demonstrate the existence of probable material error or 
injustice; and 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-2010-03700 in Executive Session on 2 May 13, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following additional documentary evidence was considered: 

 

 Exhibit B. Record of Proceedings (ROP), dated 25 Apr 11. 

 Exhibit C. Letter, Applicant, dated 27 Jan 12, w/atchs. 

 Exhibit D. Letter, NGB/A1PF, dated 17 Sep 12, w/atch. 

 Exhibit E. Letter, AFBCMR, dated 19 Sep 12. 

 Exhibit F. Letter, Applicant’s Counsel, dated 17 Oct 12, 

 w/atchs. 

 Exhibit G. Letter, NGB/A1PF, dated 1 Nov 12. 

 Exhibit H. Letter, AFBCMR, dated 9 Nov 12. 

 Exhibit I. Letter, Applicant’s Counsel, dated 7 Dec 12, 

 w/atch. 

 Exhibit J. Letter, Applicant, undated, w/atchs. 

 

 

 

 

 

 Panel Chair