RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-04161
COUNSEL: NONE
HEARING DESIRED: NO
________________________________________________________________
APPLICANT REQUESTS THAT:
His initial eligibility and start date for Aviator Continuation
Pay (ACP) be 1 October 2011.
________________________________________________________________
APPLICANT CONTENDS THAT:
The delayed release of the Air National Guard (ANG) Fiscal Year
ACP policy guidance resulted in him not being allowed to renew
his ACP agreement in time to qualify for a three-year agreement.
In support of his request, the applicant provides a copy of his
FY 2012 Pilot ACP Agreement Statement of Understanding and
numerous other documents in support of his request.
His complete submission, with attachments, is at Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
On 14 September 2011, the applicant was ordered to active duty
from 1 October 2011 through 30 September 2014. This period
authorized him to enter into a three-year FY 2012 ACP agreement;
however, the release of the new FY 2012 policy was delayed until
24 February 2012.
The remaining 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 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, they recommend approval of the applicants
requests.
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 A1PF evaluation is at Exhibit D.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 1 October 2012 and 28 May 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. The
applicant contends that the delayed release of the ANG FY 2012
ACP policy unfairly precluded him from being able to execute a
three-year ACP agreement even though he was otherwise qualified.
After a thorough review of the evidence of record and the
applicants 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
other, similarly situated officers, it is the opinion of the
Board, that because the applicant signed the new ACP agreement
as soon as the renewal became available, 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 office of primary
responsibility 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 1 October 2011
through 30 September 2014 at a rate of $15,000 annually, under
the Air National Guard Fiscal Year 2012 ACP program.
________________________________________________________________
The following members of the Board considered this application
in Executive Session on 2 July 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-
04161:
Exhibit A. DD Form 149, dated 27 March 2012, w/atchs.
Exhibit B. Letter, NGB/A1PF, dated 28 August 2012, w/atch.
Exhibit C. Letter, SAF/MRBR, dated 1 October 2012.
Exhibit D. Letter, SAF/MRB, dated 9 April 2013.
Exhibit E. Letter, AFBCMR, dated 28 May 2013.
Panel Chair
AF | BCMR | CY2013 | BC 2012 04161
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On 11 Jun 12, AFBCMR sent the applicant the SAF/MRB Legal Advisory, dated 9 Apr 13, see Exhibit E. _________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PF recommends approval. The complete NGB/A1PF evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He was under the impression that ACP was not authorized at the time he signed his contract only due to Congressional...
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Based upon the published policy guidance, the fact that he met all eligibility requirements and that the delay in release of the FY12 ACP policy was through no fault of the member, we recommend approval of the above member's request. To date, a response has not been received (Exhibit C). Exhibit C. Letter, SAF/MRBR, dated 1 October 2012.
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