RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-04300
			COUNSEL:  NONE
	XXXXXXXXXX	HEARING DESIRED:  NO


APPLICANT REQUESTS THAT:

He be eligible for Aviator Continuation Pay (ACP) beginning in 
Fiscal Year (FY) 2010.


APPLICANT CONTENDS THAT:

He was on a qualifying Air Guard Reserve (AGR) tour From 5 June 
2010 to 4 November 2012.  He should have been receiving ACP in 
accordance with the FY 2010 ACP Program.  The AGR program where he 
served his tour is a small percentage of the full-time force.  Since 
Air Reserve Technicians (ARTs) are the majority of aircrew, and are 
not entitled to ACP, the Military Personnel Flight and Flight 
Management Offices were unaware of his eligibility for ACP as an 
AGR.  Upon his assignment to the Air Force Reserve Command (AFRC), 
and subsequent return to ART status, he was made aware that he 
qualified for ACP during his AGR tour.

In support of his request, the applicant provides copies of his DD 
Form 214, Certificate of Release or Discharge from Active Duty; DD 
Form 114, Military Pay Order; AF IMT 1042, Medical Recommendation 
for Flying or Special Operational Duty; FY 2010 Reserve ACP Program 
Implementation Message, FY 2010 Reserve ACP Agreement, and various 
other items related to his request.

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


STATEMENT OF FACTS:

The applicant served on active duty from 5 June 2010 to 4 November 
2012, for a period of 2 years and 5 months.  His DD Form 214, item 
11, Primary Specialty, reflects “C11H3E, Commander, Rescue 
Helicopter Pilot.”

On 12 May 2014, the Secretary of the Air Force (SECAF) denied relief 
to two applicants seeking corrections from the Air Force Board for 
Correction of Military Records (AFBCMR) to show entitlement to 
Aviator Continuation Pay (ACP).  The SECAF 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.”  However, the Secretary also provided exceptions where 
the applicant was “misled or miscounseled” or was the victim of an 
error that in some way wrongly prevented the applicant from 
qualifying for ACP. 

On 24 June 2014, the AFBCMR staff forwarded the applicant copies of 
the noted SECAF decisions for review and comment within 30 days.  As 
of this date, no response has been received by this office.  
(Exhibit F).


AIR FORCE EVALUATION:

ARPC/DPAA recommends disapproval.  Upon review of his records, the 
applicant did technically qualify for 29 months of the ACP bonus 
(total $36,250).  The ACP bonus has been an annually recurring 
program since at least FY 2004.  While ARPC cannot confirm the 
applicant was made aware of the program at the time, there, was a 
specific eligibility period which he did not meet. 

The complete DPAA evaluation is at Exhibit B.


APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

AFRC did not have a process to properly inform him that he was 
eligible for ACP when he became an AGR pilot in 2010.  Although he 
asked about a “pilot bonus,” he inquired through his Flight 
Management Office and was unaware that he should have questioned 
AFRC/Al.  Additionally, his servicing functional support squadron 
and host base pay offices did not provide him with any AGR 
information that would have indicated he could apply for ACP because 
they were unfamiliar with AGR aircrew processes.  During the time of 
his AGR accession, the person in charge at AFRC, not only mismanaged 
his package, but other AGR packages.  For these reasons, he 
beseeches the Board to recommend approval of his request.

The applicant’s complete response, with attachments, is at Exhibit 
D.


ADDITIONAL AIR FORCE EVALUATION:

After querying the Air Force OPR regarding the applicant’s case, 
ARPC/DPAF stated that it is entirely possible the applicant’s unit 
was not properly notified of the ACP program.  Moreover, while there 
would be no way to reliably know whether the applicant was notified, 
logic would dictate that the applicant would have applied if 
notified.  As required by 10 U.S.C. 1556(a), a summary of the email 
communication between the AFBCMR and ARPC/DPAF was provided to the 
applicant for review and comment.


APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

The previous manager of the AFRC ACP program failed to send him an 
AGR package that would have included information regarding the ACP 
program and/or the application itself.  In addition ARPC/DPAA 
validated that he met the eligibility criteria for the program. 

In November 2013, at his new assignment at HQ AFRC, the Chief, Force 
Management (FM) asked why he did not receive ACP in 2010, while he 
was an AGR commander.  He informed her that he did not know what ACP 
was, but had been told he was eligible for a “flying bonus” due to 
the nature of the AGR position he had been assigned in.  The FM 
Chief and the applicant’s supervisor agreed that through no fault of 
his own he had not received ACP for which he was entitled.  
Therefore, he and his supervisor signed an ACP application to 
validate he met the program's criteria.  He was advised to request 
correction of his records due to an error in the AGR hiring process 
that resulted in an unnecessary loss in his pay.

The applicant’s complete response is at Exhibit I.


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.  We note that ARPC/DPAA 
states the applicant qualified for 29 months of the ACP bonus yet 
recommends denial.  However, as pointed out by ARPC/DPAF, logic 
dictates that the applicant would have applied for the ACP had he 
been notified.  We are aware of recent Secretarial decisions that 
have established precedent to deny some categories of ACP 
corrections.  This case is distinguishable.  In the two cases 
reviewed by the panel, the Secretary denied the applicants’ requests 
to receive ACP, not because they were misinformed, as in the present 
case; rather, the program was simply unavailable at the time the 
applicant desired the pay.  Indeed, the Secretary implies that a 
correction granting ACP may be appropriate in cases where the 
applicant was misled, miscounseled, or the Air Force erred in some 
way that prevented the applicant from obtaining ACP.  We find that 
rationale applies here.  Based on the circumstances in this case, we 
find it more likely than not that the applicant was unaware that he 
was eligible for the ACP because of misinformation or mismanagement 
during his accession for an AGR tour.  Therefore, in the interest of 
justice we recommend his record be corrected to show that his ACP 
contract for the period 5 June 2010 through 4 November 2012 at a 
rate of $15,000 annually, under the Reserve Fiscal Year 2010 ACP 
program was approved.  Accordingly, we recommend his records be 
corrected as set forth 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 5 June 2010 through 4 November 2012 at a 
rate of $15,000 annually, under the Reserve Fiscal Year 2010 ACP 
program.


The following members of the Board considered this application in 
Executive Session on 9 September 2014 and 26 January 2015, under the 
provisions of AFI 36-2603:

       , Panel Chair
       , Member
       , Member

All members voted to correct the record as recommended.  The 
following documentary evidence pertaining to AFBCMR BC-2013-
04300 was considered:

      Exhibit A.  DD Form 149, dated 5 September 2013, w/atchs.
      Exhibit B.  Letter, ARPC/DPAA, dated 26 November 2013,
                  w/atchs.
      Exhibit C.  Letter, SAF/MRBR, dated 6 December 2013.
      Exhibit D.  Letter, Applicant, dated 3 January 2014,
                  w/atchs.
      Exhibit E.  Letter, Secretary of the Air Force, dated
                  12 May 2014, w/atch.
      Exhibit F.  Letter, SAF/MRBR, dated 27 June 2014
      Exhibit G.  Email, ARPC/DPAA, dated 20 October 2014
      Exhibit H.  Email, AFBCMR, dated 17 November 2014
      Exhibit I.  Email, Applicant, dated 11 December 2014