RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-05602
COUNSEL: NONE
HEARING DESIRED: NO
________________________________________________________________
APPLICANT REQUESTS THAT:
His Aviator Retention Pay (ARP) agreement eligibility effective
date be changed to 2 Feb 13 instead of 27 Aug 13.
________________________________________________________________
APPLICANT CONTENDS THAT:
The Air National Guard (ANG) FY13 ARP program policy was not
released until 7 Jun 13 and the FY13 National Defense
Authorization Act (NDAA) does not permit back dating of his ARP
contract before 7 Jun 13.
In support of his request, the applicant provides copies of his
FY13 ARP Statement of Understanding (SOU), Active Guard Reserve
(AGR) orders and a letter from the Director of Staff, Joint
Forces Headquarters, Oregon National Guard (JFHQ-OR-AC/DS).
The applicants complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
The applicant is a member of the Oregon Air National Guard
(OANG) and he is currently serving on an AGR tour.
According to Special Order A-Y000074 dated 14 Jan 13, the
applicant was placed on an AGR continuation tour for the period
of 3 Feb 13 through 31 Jan 17.
The applicants ARP agreement is for the period of 27 Aug
13 through 26 Aug 17. In a letter dated 26 Aug 13, JFHQ-OR-
AC/DS states the applicant will be issued follow-on orders upon
completion of his current tour to fulfill his Active Duty
Service Commitment (ADSC) for ARP.
On 12 May 14, 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 Jun 14, SAF/MRBR forwarded the applicant copies of the
noted SecAF decisions for review and comment within 30 days
(Exhibit D). As of this date, this office has not received a
response.
________________________________________________________________
AIR FORCE EVALUATION:
NGB/A1PF recommends approval of the applicants request. Upon
review of his application, A1PF concluded that he should be
permitted to adjust the effective date of his current FY13 ARP
agreement from 27 Aug 13 to 2 Feb 13. This adjustment would not
change the annual amount ($15,000 per year) nor would it create
additional payments. It would simply change the effective date
of future anniversary payments and the value of the final
payment. The effective dates for ARP would be changed with
Defense Finance and Accounting Service (DFAS) to 2 Feb 13 thru
1 Feb 17 and the final payment would be recomputed to reflect
the new period of eligible service.
The complete A1PF evaluation is at Exhibit B.
________________________________________________________________
APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:
On 14 Feb 14, the copy of the Air Force evaluation was forwarded
to the applicant for review and comment within 30 days (Exhibit
C). As of this date, this office has not received a response.
________________________________________________________________
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 note
that AIPF recommends approval, stating that the adjustment would
not change the annual amount nor would it create additional
payments. However, in view of the fact the Secretary of the Air
Force (SecAF) has determined that any delay in the approval of
the ARP program for a given year cannot become the basis for a
retroactive recovery, and because this Board acts on behalf of
the SecAF in these matters, we are not persuaded the applicant
is the victim of an error or injustice. Therefore, the
applicant has failed to sustain his burden of proof that he has
been the victim of an error or injustice. In view of the above
and in the absence of evidence to the contrary, we find no basis
to recommend granting the relief sought in this application.
________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not
demonstrate the existence of material error or injustice; that
the application was denied without a personal appearance; and
that 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 BC-2013-
05602 in Executive Session on 18 Sep 14, under the provisions of
AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 25 Nov 11 [sic], w/atchs.
Exhibit B. Letter, NGB/A1PF, dated 23 Jan 14.
Exhibit C. Letter, SAF/MRBR, dated 14 Feb 14.
Exhibit D. Letter, SAF/MRBR, dated 25 Jun 14, w/atchs.
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