RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-00960
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
He be permitted to initiate a new four year contact for Aviator
Retention Pay (ARP) for Fiscal Year (FY) 13 with an initial
eligibility and start date of 1 Feb 13.
APPLICANT CONTENDS THAT:
The delayed release of the Air National Guard (ANG) FY13 ARP
policy guidance makes him eligible for the smaller incentive rate
of $15,000 per year, pro-rated for 43 months instead of an
incentive rate of $25,000 per year for 48 months. The FY13 ARP
program, unlike the FY12 Aviator Continuation Pay (ACP) program,
does not allow for back-dating of contracts to the date of orders
issued, nor does it allow extending current orders for those
members on probationary tours.
In support of his request, the applicant provides a personal
statement, copies of his FY13 ARP Agreement Statement of
Understanding (SOU), orders, ANG FY13 Implementation Policy,
FY12 Pilot ACP Agreement SOU, memorandums and various other
documents related to his request.
His complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:
The applicant is currently serving in the ANG in the grade of
major.
According to Special Order A-X000123 dated 22 Jan 13, the
applicant was ordered to full time duty from 1 Feb 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. 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 for the program for a given year cannot become
the basis for a retroactive recovery (Exhibit C).
On 27 Jun 14, the AFBCMR staff forwarded the applicant a copy of
the noted SECAF decision for review and comment within 30 days.
As of this date, no response has been received by this office
(Exhibit D).
AIR FORCE EVALUATION:
NGB/A1PF recommends denial. The ANG FY13 ARP policy was delayed
until 7 Jun 13, delaying the submission of his application
resulting in orders that did not cover the entire period of the
requested agreement. ARP is a retention bonus, which by nature is
an incentive intended to modify an officer's future conduct.
Regrettably, it is not possible to execute an incentive for past
conduct, therefore backdating ARP agreements is not in keeping
with Congressional intent as authorized by 37 U.S. Code § 334 -
Special Aviation Incentive Pay and Bonus Authorities for Officers.
The applicant did not have sufficient time remaining on his orders
to support a 4-year ANG FY13 ARP Agreement. He was on an "Initial
Tour" order from 1 Feb 13 through 31 Jan 17. 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 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 which he is currently receiving.
The complete A1PF evaluation is at Exhibit B.
APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant
on 30 May 14, for review and comment within 30 days. As of this
date, no response has been received by this office (Exhibit D).
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 error or injustice. We took notice
of the applicant's complete submission in judging the merits of
the case; however, we agree with the opinion and recommendation of
the Air Force office of primary responsibility and adopt the
rationale expressed as the basis for our conclusion the applicant
has not been the victim of an error or injustice. Therefore, 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 Docket Number
BC-2014-00960 in Executive Session on 15 Jan 15, under the
provisions of AFI 36-2603:
Panel Chair
Member
Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 5 Mar 14, w/atchs.
Exhibit B. Letter, NGB/A1PF dated 7 May 14.
Exhibit C. Letters, Secretary of the Air Force, dated
12 May 14.
Exhibit D. Letter, SAF/MRBR, dated 30 May 14.
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