RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-05082
		COUNSEL:  NONE
	XXXXXXX	HEARING DESIRED:  NOT INDICATED

________________________________________________________________

APPLICANT REQUESTS THAT:

He be authorized payment for the second installment of the 
Fiscal Year (FY) 2010 Aviator Continuation Pay (ACP) bonus as 
reflected in his approved contract.

________________________________________________________________

APPLICANT CONTENDS THAT:

His FY 2010 ACP contract was approved based on an exception to 
policy which allowed him to be on a two year contract utilizing 
Contingency, Exercise and Deployment (CED) orders.  The purpose 
for the exception to policy was Air Combat Command (ACC) could 
not allocate two years of Military Personnel Appropriation (MPA) 
orders at a time.  However, ACC agreed to authorize two years of 
CED travel orders showing intent to remain through the contract.  
The exception to policy required a statement of understanding 
indicating if two years of consecutive pay orders were not 
attained, a portion (or all) of the ACP payment would be 
recouped.  He fulfilled the entire two year ACP contract on 
14 Sep 2012 and has not been paid the second installment.

The FY 2010 ACP policy stipulates one must be on orders for a 
minimum term of two years continuous duty (compiling multiple 
orders or amendments to reach the mandatory two-year term, is 
not authorized and exceptions to this policy, regardless of 
reason, are not authorized and will not be granted).  As such, 
this policy does not stipulate the type of order one must be on, 
it only speculates it must be an order.  Since this is the case, 
an exception to policy was submitted and subsequently approved 
allowing him to utilize a two year CED order as his continuous 
order.  Throughout this period, he was on consecutive MPA pay 
orders.

In support of his request, the applicant provides a copy of his 
FY 2010 Pilot ACP Agreement Statement of Understanding, 
exception to policy, CED orders and various other documents 
associated with his request.

His complete submission, with attachments, is at Exhibit A.

________________________________________________________________


STATEMENT OF FACTS:

The relevant facts pertaining to this application are described 
in the letters prepared by the Air Force office of primary 
responsibility and SAF/MRB Legal Advisor attached at Exhibits B 
and D.

________________________________________________________________

AIR FORCE EVALUATION:

NGB/A1PF recommends approval.  A1PF states that both the 
applicant and his ACP Coordinator were miscounseled when the 
agreement was originally processed.  The error was not caught 
nor corrected and the member received a payment and made plans 
for the projected second payment.  According to the FY 2010 Air 
National Guard ACP Policy, members are only eligible to apply 
" ... for the period of time for the orders in hand."  When the 
applicant submitted his ACP application, he had a two year CED 
order and Air National Guard Reserve Order Writing System 
(AROWS) orders effective 15 Sep 2010 through 30 Sep 2011.  He 
received updated AROWS orders through 3 Dec 2012 and then 
received a MPA order on 25 Sep 2012 effective 15 Sep 
2010 through 30 Sep 2012.  Although he ended up with funded 
(AROWS) orders and actively served the entire period, the only 
orders that covered the entire length of the agreement when he 
applied were the CED orders.  After consulting with NGB/AlPR, 
A1PF determined that CED orders did not constitute valid and 
funded duty orders and therefore did not meet the intent of the 
policy.  If the applicant applied today for ACP with these 
orders, he would be denied because he would not meet the 
eligibility requirements per the policy.  However, after 
speaking with the ACP Coordinator, A1PF found that this question 
was posed to NGB/A1PF at the time and they were told the CED 
orders would be accepted.  Although this decision conflicts with 
the policy, the member and ACP Coordinator asked for 
clarification and were misinformed and miscounseled.  Therefore, 
A1PF recommends his ACP agreement be honored in full and he be 
paid the second (and final) payment of $15,000 effective 15 Sep 
2011.

The complete A1PF evaluation is at Exhibit B.

The SAF/MRB Legal Advisor states that the Board has the 
authority to correct the record to show acceptance by the 
Secretary of a valid ACP contract signed by the applicant on a 
date that would capture the whole period of eligibility; 
however, the Board should be very cautious about granting such 
applications.  To warrant relief, the applicant must prove by 
sufficient evidence that he or she is the victim of a serious 
injustice not shared by other, similarly situated officers.  
Because it is impossible to execute incentives for past conduct, 
backdating ACP agreements violates the intent of Congress in 
authorizing ACP payments in the first place.  However, due to 
the almost perpetual expectation that ACP will continue to be 
provided to Air Force pilots, many officers may develop an 
erroneous expectation that ACP is actually an entitlement versus 
an incentive.  Conceivably, the Board may find this belief 
sympathetic and grant relief based on injustice, if that belief 
led to an active service commitment.  Every case must be 
considered on its own facts and these facts require deliberation 
by the AFBCMR panels.  As in all cases, the burden of proof 
remains with the applicant.

The complete MRB evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 8 Apr 2013 and 8 Jul 2013, copies of the Air Force evaluation 
and SAF/MRB Legal Advisory were respectively forwarded to the 
applicant for review and comment within 30 days.  As of this 
date, no response has been received by this office (Exhibits C 
and E).

________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by 
existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  After a 
thorough review of the evidence of record and the applicant’s 
complete submission, we believe it is in the interest of justice 
to recommend granting the requested relief.  While we note the 
comments of the SAF/MRB Legal Advisor indicating an applicant 
must prove by sufficient evidence that he or she is the victim 
of a serious injustice not shared by others, similarly situated 
officers, it is our opinion , that because the applicant signed 
the ACP agreement based on counseling from the OPR and that 
similarly situated members of his unit had their records 
corrected, we find it reasonable to conclude that he anticipated 
receiving the incentives outlined in the agreement. Therefore, 
we agree with the opinion and recommendation of the Air Force 
OPR and adopt its rationale as the basis for our conclusion the 
applicant has been the victim of an error or injustice.  
Accordingly, we recommend his records be corrected as indicated 
below.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to the APPLICANT be corrected to show that 
competent authority approved his request for an Aviator 
Continuation Pay (ACP) contract for the period 15 Sep 2010 
through 14 Sep 2012 at a rate of $15,000 annually, under the Air 
National Guard Fiscal Year 2010 ACP program.

________________________________________________________________

The following members of the Board considered this application 
in Executive Session on 15 Aug 2013, under the provisions of AFI 
36-2603:

    , Panel Chair
    , Member
    , Member

All members voted to correct the record as recommended.  The 
following documentary evidence was considered in AFBCMR BC-2012-
05082:

    Exhibit A.  DD Form 149, dated 12 Oct 2012, w/atchs.
    Exhibit B.  Letter, NGB/A1PF, dated 29 Mar 2013.
    Exhibit C.  Letter, SAF/MRBR, dated 8 Apr 2013.
    Exhibit D.  Letter, SAF/MRB, dated 9 Apr 2013.
    Exhibit E.  Letter, AFBCMR, dated 8 Jul 2013.




                                   
                                   Panel Chair

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