RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-00946
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
His Aviator Retention Pay (ARP) eligibility date of 7 Jun 13 be changed to 1 Feb 13 to make him eligible for a four-year Air National Guard (ANG) Fiscal Year (FY) 2013 ARP Agreement.
APPLICANT CONTENDS THAT:
He was unfairly denied the opportunity to receive the full amount of FY13 ARP because the annual ARP agreement was released late. The ARP authorizing legislation was passed in Oct 12, but the ANG FY13 ARP Program was not available until Jun 13.
The applicants complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:
The applicant served as a pilot with the Arizona Air National Guard during the period of time in question.
According to the documents submitted by the applicant, on 7 Jun 13, he applied and was approved for the ANG FY13 ARP Program for Option B ($15,000 per year for 2 to 4 years), effective during the period 7 Jun 13 through 31 Jan 17.
On 12 May 14, the Secretary of the Air Force (SecAF) denied relief to two applicants making similar arguments to the AFBCMR. The memorandum stated, in part, 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.
The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.
AIR FORCE EVALUATION:
NGB/A1PF recommends denial indicating there is no evidence of an error or an injustice. The applicant did not have sufficient time remaining on his orders at the time he applied to support a four-year ANG FY13 ARP Agreement. He was also on an Initial Tour order covering the period 1 Feb 13 through 31 Jan 17. In accordance with Air National Guard Instruction 36-101, The Active Guard/Reserve (AGR) Program, this order is considered probationary. The ANG FY13 ARP policy states, at the time of application, members on probationary tours must have orders in hand that cover the entire length of the agreement. The ANG FY13 ARP policy was issued on 7 Jun 13, delaying the applicants submission of his application until a point in time that his orders did not cover the entire period of the requested agreement. ARP is a retention bonus intended to modify an officers future conduct. It is not possible to execute an incentive for past conduct. Therefore, backdating an ARP agreement is not in keeping with Congressional intent. The applicant is, however, collecting $15,000 ARP per year covering the period 7 Jun 13 through 31 Jan 17.
A complete copy of the NGB/A1PF evaluation is at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 20 May 14 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office.
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 applicants complete submission, to include his rebuttal response to the advisory opinion, in judging the merits of the case; however, we agree with the opinion and recommendation of NGB/A1PF and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. The Board notes that the applicant signed his FY13 Pilot Aviator Retention Pay (ARP) Statement of Understanding (SOU) on 7 Jun 13, requesting a retroactive effective date of 1 Feb 13. However, in view of the fact the Secretary of the Air Force (SecAF) has recently determined that any delay in 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, in the absence of evidence the applicant has been treated differently than others similarly situated, we find no basis to recommend granting the requested relief.
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-2014-00946 in Executive Session on 19 Feb 15 under the provisions of AFI 36-2603:
Panel Chair
Member
Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 23 Feb 14, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, NGB/A1PF, dated 7 May 14.
Exhibit D. Letter, SAF/MRBR, dated 20 May 14.
AF | BCMR | CY2014 | BC 2014 00960
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. Paragraph 2.2.1 of the ANG FY13 ARP Policy states that members on probationary tours must have orders in hand that cover the entire length of the agreement at the time of their application. The applicant was eligible for a FY13 ARP Agreement that covers the period 7 Jun 13 through 31 Jan 17 at $15,000 per year...
AF | BCMR | CY2014 | BC 2014 01030
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. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: NGB/A1PF recommends denial indicating there is no evidence of an error or an injustice. Therefore,...
AF | BCMR | CY2013 | BC 2013 03525
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 12 Jul 14, SAF/MRBR forwarded the applicant copies of the noted SecAF decisions for review and comment within 30 days (Exhibit I). APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a letter dated 11 Mar 14, the applicant requested his application be re-opened....
AF | BCMR | CY2013 | BC 2013 05602
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. 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. 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...
AF | BCMR | CY2014 | BC 2014 00475
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00475 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Aviator Retention Pay (ARP) contract be changed to reflect he is on a four-year Air Guard Reserve (AGR) tour. 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...
AF | BCMR | CY2013 | BC 2013 03832
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 complete copy of the applicants...
AF | BCMR | CY2013 | BC 2013 03608
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. The complete SecAF decision is at Exhibit F. ________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PF recommends denial. Upon further review of the documents provided, A1PF concludes he should be permitted to request,...
AF | BCMR | CY2014 | BC 2014 00915
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. In accordance with ANGI 36-101, Air National Guard Active Guard Reserve (AGR) Program, chapter 6, paragraph 6.1, this order is considered probationary. Paragraph 2.2.1 of the ANG FY 2013 ARP Policy states that members on probationary tours must have orders in hand that cover the entire length of the agreement at...
AF | BCMR | CY2014 | BC 2014 01790
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01790 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: He be approved for the Fiscal Year 2013 (FY13) Air National Guard (ANG) Aviator Retention Pay (ARP) retroactive to 1 Jul 13. Two other members of his unit, who submitted their applications around the same time, were approved for the ARP, because they had more eligibility (Total Active Federal Military Service...
AF | BCMR | CY2013 | BC 2013 03760
According to the FY 2013 ANG ARP Policy, paragraph 2.1.7, each aviator must: Be eligible for at least two continuous years of full time duty upon acceptance of an ARP Agreement." We took notice of the applicants complete submission in judging the merits of the case; and note the Air Force office of primary responsibilitys recommendation to grant the applicants request because the release of the FY 2013 ARP Policy was delayed until 7 June 2013. Exhibit G. Letters, Secretary of the Air...