RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-02575
COUNSEL: NONE
HEARING DESIRED: YES
APPLICANT REQUESTS THAT:
She receive retroactive payment of Legacy Incentive Specialty Pay (ISP) for the period 2012 and 2013.
APPLICANT CONTENDS THAT:
She applied for her ISP in a timely manner, but her supervisor at the time refused to certify her eligibility and did not further process her request. A subsequent Inspector General (IG) investigation determined that her supervisor wrongfully, maliciously, and unjustly downgraded her air force specialty code (AFSC) rendering her ineligible for ISP.
The applicants complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:
During the matter in question, the applicant was serving in the Regular Air Force in the grade of major (O-4).
On 24 Apr 09, the applicant was approved for a multi-year nurse corps Incentive Specialty Pay (MISP), effective 1 Mar 09 until 1 Mar 13.
On 9 Sep 13, according to documents submitted by the applicant, IG investigation FRNO 2013-07242 determined there was sufficient evidence to substantiate she was unjustly denied ISP applications/contracts.
On 28 Nov 14, the applicant was permanently disability retired in the grade of Major (O-4), with a compensable percentage for physical disability of 70 percent, and was credited with 12 years and 9 days of active service.
The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C and D.
AIR FORCE EVALUATION:
AFPC/DPANF recommends granting relief, indicating sufficient evidence has been presented to demonstrate the existence of error or injustice. After reviewing the applicants records and documentation submitted, they determined that the applicant submitted a single year ISP request 30 Oct 12 and her supervisor declined to certify her ISP contract. In Feb 13, her AFSC was downgraded from M46N3E to 46Nl, rendering her ineligible for ISP. However, in reviewing the details from the IG investigation FRNO 2013-07242, due to the correction of members AFSC, and other substantiated claims, she should be authorized ISP. She was previously on a 1 Mar 09 to 28 Feb 13 MISP contract. She was not eligible for single year ISP until her previous MISP contract expired. Based on their review of the applicants records and active duty service commitments (ADSC), the requested 30 Oct 12 single year ISP contract effective date was not valid. The correct effective dates would have been 1 Mar 13 and 1 Mar 14 for the subsequent contracts.
According to the Comptroller General, retroactive administrative pay is generally prohibited barring an administrative error. In addition, when interpreting statutes, there is a presumption against retroactivity. Statutes should generally not be read to have retroactive effect unless specific language requires. Further, Federal Courts have consistently defined injustice within Title 10, United States Code (USC), §1552 as behavior or action that rises to the level that shocks the sense of justice. In their opinion, considering all the circumstances in this case, the applicant's record should now be altered, as the error was on the part of the Air Force, not the member, and the circumstances rise to a level that "shocks the sense of justice" within the meaning of 10 USC § 1552.
A complete copy of the AFPC/DPANF 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 Oct 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. Sufficient 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 and 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 been the victim of an error or injustice. We did note that AFPC/DPANF identified the correct effective dates for the subsequent Nurse ISP contracts would have been 1 Mar 13 and 1 Mar 14. We note the applicant would not have been able to serve the full period for the 1 Mar 14 contract due to her retirement on 28 Nov 14; however, in view of the fact that she was retired for physical disability, the unearned portion of the ISP for this period will not be subject to recoupment. Therefore, we recommend the applicant's records be corrected as indicated below.
4. The applicants case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered.
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that she was granted Nurse Incentive Specialty Pay (ISP), effective 1 March 2013 and 1 March 2014, at the single year rate.
The following members of the Board considered AFBCMR Docket Number BC-2014-02575 in Executive Session on 21 Apr 15 under the provisions of AFI 36-2603:
All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-02575 was considered:
Exhibit A. DD Form 149, dated 14 Jun 14, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPANF, dated 29 Aug 14.
Exhibit D. Letter, SAF/MRBR, dated 27 Oct 14.
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