ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBERS: BC-2010-03789
COUNSEL: None
HEARING DESIRED: YES
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APPLICANT REQUESTS THAT:
He be entitled to Variable Special Pay (VSP), Board Certification Pay (BCP), Additional Specialty Pay (ASP), Multiyear Special Pay (MSP), and Multiyear/Single Year Incentive Special Pay (MISP), as a result of his service as a physician with the 21st Civil Support Team (CST), New Jersey Air National Guard (NJANG).
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RESUME OF CASE:
On 13 March 2012, the Board considered and partially granted the applicants requests for VSP and BCP for the period 26 October 2004 to 30 April 2008; however, they voted to disapprove his requests for ASP, MSP, and ISP/MISP. For an accounting of the facts and circumstances regarding the rationale of the earlier decisions by the Board, please see the Record of Proceedings (ROP) at Exhibit I.
On 25 April 2012, the applicants counsel submitted a request for reconsideration of the applicants requests for ASP, MSP, and ISP/MISP. Counsel argues that the Boards denial of ASP, MSP, and ISP/MISP was flawed based on the Boards reliance on the AF/JAA advisory which did not consider, mention, or address the law, regulations, or legal arguments made in the applicants rebuttal to it, and, the Boards reliance on statements in the AF/JAA advisory, which may have inadvertently misled the Board. Counsel indicates the Boards denial was based on its acceptance of the argument set forth by AF/JAA that the contracts required approval by appropriate authority, but AF/JAA does not identify who the appropriate authority is.
The applicants counsel provides a statement in support of his clients appeal for reconsideration.
The counsels complete submission is at Exhibit J.
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AIR FORCE EVALUATION:
AF/JAA states their review indicates that Air Force Instruction (AFI) 41-109 is the controlling instruction for the applicants appeal and that the approval authority for special pay contracts is the Surgeon General of the Air Force (AF/SG), as designee for the Secretary of the Air Force (SECAF). JAA indicates that despite never receiving the required approval of the AF/SG, it is evident that the applicant had received documents recommending approval of the special pays at the installation level. Whether such documents or assurances create an injustice deserving of correction as a matter of equity is a matter for determination by the Board.
The complete AF/JAA evaluation is at Exhibit K.
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COUNSEL'S REVIEW OF AIR FORCE EVALUATION:
The importance of the AF/JAA opinion that AFI 41-109 applies to his client cannot be overstated. They have argued from the start of this process, that the AFI represents the SECAFs delegation and guidance on the matter. As the Secretarys delegate, it is axiomatic that the AF/SG has the only authority given. AF/SG can only deny special pay under specific circumstances set out in the AFI (e.g. misconduct or substandard performance), none of which apply to his client. AF/JAA recognizes his clients applications were fully approved at the installation level in accordance with the governing instruction. Had his applications for specialty pays been processed under AFI 41-109, there was no basis for denying them. In short, the only result that can be reached given that AFI 41-109 applies to his client, it should have been paid. Furthermore, based on the assurances he received prior to accepting the job, as a matter of equity he should receive the specialty pays that were repeatedly promised to him. By law, he was a doctor on active duty and entitled to the same treatment under AFI 41-109 as all other doctors on active duty. Therefore, he should be paid ASP, MISP, and MSP for the same period his VCP and BCP were paid.
The counsels complete rebuttal is at Exhibit M.
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THE BOARD CONCLUDES THAT:
After a thorough review of the evidence of record a majority of the Board finds the applicant has suffered an injustice due to his good faith efforts taken after the assurances he was provided by Air National Guard personnel. The applicant meets the qualifications for the special pays requested and although there is a lack of endorsement by AF/SG, the Board majority believes there is no basis that AF/SG could have disapproved the pays if the request would have been submitted as it should have been. Therefore, the Board majority recommends the applicants record be corrected as indicated below.
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THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that competent authority approved his requests for Additional Specialty Pay (ASP), Multiyear Special Pay (MSP), and Multiyear/Single Year Incentive Special Pay (MISP) for the period 26 October 2004 to 30 April 2008.
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The following members of the Board considered AFBCMR Docket Number BC-2010-03789 in Executive Session on 19 September 2013, under the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
and voted to correct the records, as recommended. voted to deny the applicants requests; however, chose not to write a minority report. The following documentary evidence for AFBCMR Docket Number BC-2010-03789 was considered:
Exhibit I. Record of Proceedings, dated 21 Mar 12,
with Exhibits A through H.
Exhibit J. Letter, Counsel, dated 25 Apr 12.
Exhibit K. Letter, AF/JAA, dated 26 Mar 13.
Exhibit L. Letter, AFBCMR, dated 28 Mar 13.
Exhibit M. Letter, Counsel, dated 5 Apr 13.
Panel Chair
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