RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-03832
		
		COUNSEL:  NONE

		HEARING DESIRED:  YES




APPLICANT REQUESTS THAT:

His initial eligibility and start date for Aviator Retention Pay (ARP) be 11 Feb 13.  



APPLICANT CONTENDS THAT:

The delayed release of the Air National Guard (ANG) Fiscal Year (FY) 2013 ARP policy guidance resulted in his not being allowed to renew his two-year ARP agreement.  A renewal ARP agreement is a significant factor in his decision to remain in an Air Guard Reserve (AGR) status and he is being denied eligibility due to circumstances beyond his control.   

The applicant’s complete submission, with attachments, is at Exhibit A.



STATEMENT OF FACTS:

The applicant currently serves in the Air National Guard (ANG) as a Remotely Piloted Aircraft (RPA) pilot in the grade of lieutenant colonel (O-5).  

On 12 May 2014, the Secretary of the Air Force (SECAF) denied relief to two applicants making similar arguments to the AFBCMR.  Her memorandum stated, in part, that “Aviator Continuation Pay (ACP) is an incentive program, not an entitlement.  The intent of Congress (and therefore the purpose of the statute) was to provide an incentive that would encourage aviation service officers not to leave active duty.  Backdating an ACP agreement essentially offers an incentive to an officer for a decision he has already made and provides a retention bonus for a period of service already served.  Doing so would depart from the purpose of the statute.  Furthermore, because the decision whether or not to offer ACP in any given year is entirely at the discretion of the Secretary, any delay in approval of the program for a given year cannot become the basis for a retroactive recovery.”

On 25 Aug 14, the AFBCMR staff forwarded the decisional documents related to a recent Secretary of the Air Force determination regarding Aviator Continuation Pay (ACP) to the applicant, now known as Aviator Retention Pay (ARP), for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit I).

The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility (OPR) which are included at Exhibits C, D, and G.



AIR FORCE EVALUATION:

NGB/A1PF recommends denial, indicating the applicant is ineligible and should not be permitted to request, execute, or be paid for a FY 2013 ARP Agreement.  The package presented was incomplete; not providing the documents necessary to determine eligibility and the “Orders End Date” on the ARP coordinator spreadsheet was incorrect.   

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



ADDITIONAL AIR FORCE ADVISORY:

The AFBCMR Legal Advisor recommends that given the purpose of the law authorizing ACP, the Board should be clear that a given case presents a genuine injustice that must be remedied before granting applications for retroactive approval of ACP contracts.  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.  In referring to ACP, the statute, Title 37, Section 301b, uses the term “retention bonus,” which by its nature is an incentive intended to modify an officer’s future conduct.  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.  

A complete copy of the AFBCMR Legal Advisor evaluation is at Exhibit D.



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

There were several missing documents (stapled pages that did not get scanned) and an incorrect “Orders End Date” listed on the ARP coordinator spreadsheet in his application package that contributed to NGB/A1PF’s recommendation to deny his request.  NGB/A1PF obtained the additional and corrected documents and advised him they would rescind their previous recommendation.

A complete copy of the applicant’s response is at Exhibit F.



ADDITIONAL AIR FORCE EVALUATION:

NGB/A1PF recommends approval of the applicant’s request.  After reviewing the applicant’s complete resubmission of his application, according to Special Order A-A000237, dated 26 Feb 09, the applicant was ordered to duty from 11 Feb 09 through 17 Feb 14.  As a RPA pilot, this period would have allowed him to enter into a FY13 ARP agreement per paragraph 2.1.10 of the ANG FY13 ARP policy.  However, the release of the FY 13 ARP policy was delayed until 7 Jun 13.  Because of this delay, he was unable to submit his application for ARP until after 7 Jun 13 which is outside of the 30 day processing window allowed per paragraph 1.7.3 of the ANG FY13 ARP Policy.  Based upon the published policy guidance, the fact that the applicant met all eligibility requirements and that the policy delay was through no fault of his own, NGB/A1PF recommends approval of the applicant’s request. 

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



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 an error or injustice.  We took notice of the applicant’s complete submission, to include his rebuttal response, in judging the merits of the case; however, we are not convinced the evidence presented by the applicant is sufficient to conclude that he is the victim of an error or injustice that would warrant corrective action.  While we note the NGB/A1PF recommendation to grant the applicant’s request because the delay in the release of the FY 2013 ARP Policy was through no fault of his own, we are not convinced the applicant is the victim of an injustice.  In this respect, we note that ARP is an incentive program, not an entitlement and true incentives influence decisions about the future.  Therefore, correcting the applicant’s records to reflect a backdated ARP agreement essentially offers an incentive to an officer for a decision he has already made and provides a retention bonus for a period of service already served.  Furthermore, because the decision whether or not to offer ARP in any given year is entirely at the discretion of the Secretary, any delay in approval of the program for a given year cannot become the basis for a retroactive recovery.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

4.  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 material error or injustice; the application was denied without a personal appearance; 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-2013-03832 in Executive Session on 14 Oct 14, under the provisions of AFI 36-2603:

	
The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-03832 was considered:

	Exhibit A.  DD Form 149, dated 29 Jul 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, NGB/A1PF, dated 26 Sep 13.
	Exhibit D.  Letter, SAF/MRB Legal Advisor, dated 9 Apr 13.
	Exhibit E.  Letter, SAF/MRBR, dated 14 Nov 13.
	Exhibit F.  Letter, Applicant, dated 3 Dec 13, w/atchs.
	Exhibit G.  Letter, NGB/A1PF, dated 2 Jan 14.
	Exhibit H.  Letter, SAF/MRBR, dated 23 Jan 14.  
	Exhibit I.  Letter, AFBCMR, dated 25 Aug 14, w/atchs.

						

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