RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-01030

					COUNSEL:  NONE

		HEARING DESIRED:  NO 




APPLICANT REQUESTS THAT:

His original AGR order covering the period from 17 Nov 12 to 16 Nov 16, and continuation tour order, covering the period 17 Nov 16 to 7 Jun 17, be replaced by a single order placing him on full time AGR duty from 17 Nov 12 to 7 Jun 17, encompassing a retroactively granted four-year ($25,000/year) Aviator Retention Pay (ARP) agreement with a start date of 17 Nov 12. 


APPLICANT CONTENDS THAT:

The delayed release of the Air National Guard (ANG) Fiscal Year (FY) 2013 ARP policy guidance resulted in his not being eligible for a four-year ARP agreement ($25,000/year).  He was issued a four-year order on 17 Nov 12 and told that when the FY13 ARP Policy was released, extension orders would be processed to cover the four-year ARP agreement.  When the FY13 ARP policy was released on 7 Jun 13, his orders were extended and a four-year ARP application was submitted.  NGB/A1 denied the new application, advising that orders cannot be compiled for the sole purpose of making a member eligible for a bonus; however, he was eligible for the two-four year agreement ($15,000/year), a difference of approximately $50,000 from the four-year ARP agreement.  

The applicant’s complete submission, with attachments, is at Exhibit A.


STATEMENT OF FACTS:

The applicant currently serves in the Air National Guard (ANG) as a KC-135 R/T mobility pilot, in the grade of major (O-4).  

On 12 May 2014, 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 27 Jun 14, the AFBCMR staff forwarded the decisional documents related to a recent Secretary of the Air Force determination regarding Aviator Continuation Pay (ACP), now known as Aviator Retention Pay (ARP), to the applicant for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit D).

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 was on an “Initial Tour” order from 17 Nov 12 through 16 Nov 16.  The ANG FY13 ARP policy was delayed until 7 Jun 13, which resulted in the applicant not having sufficient time remaining on his orders at the time of application to support a four-year ANG FY13 ARP agreement.  In accordance with Air National Guard Instruction 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 time of application.  ARP is a retention bonus, which by its 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.C. Section 334, Special Aviation Incentive Pay and Bonus Authorities for Officers.  The applicant is eligible for a FY13 ARP agreement that covers the period 7 Jun 13 through 16 Nov 16 at $15K/year, which he is currently receiving.  

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 27 Jun 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 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 (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. While we note the applicant’s contention that he was told that when the ARP policy was released, extension orders would be processed to cover a 4-year ARP agreement, there is no supporting evidence that the 4-year ARP agreement influenced his decision to accept his original AGR orders covering the period from 17 Nov 12 to 16 Nov 16; therefore, we are not convinced the applicant is the victim of an injustice.  In this respect, we note that ARP is an incentive program, not an entitlement, and true incentives influence decisions about the future.  Therefore, correcting the applicant’s records to reflect a backdated ARP 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.  Furthermore, because the decision whether or not to offer ARP 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.  Therefore, in the absence of evidence to the contrary, 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-2014-01030 in Executive Session on 24 Feb 15 under the provisions of AFI 36-2603:

	


The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 11 Feb 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, NGB/A1PF, dated 8 May 14.
Exhibit D.  Letter, SAF/MRBR, dated 27 Jun 14.