IN THE CASE OF:	

		BOARD DATE:	25 August 2009  

		DOCKET NUMBER:  AR20090004735 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his military records be corrected to show his Total Active Federal Commissioned Service (TAFCS) began on 15 June 1992 for entitlement to additional Aviator Continuation Pay (ACP).  

2.  The applicant states, in effect, that the computation of his TAFCS date was incorrectly applied to his 1999 ACP agreement and that he is due additional monies to compensate for this error.  He claims that he was not afforded the full benefit of the ACP program and that there is a 13 month disparity.  He points out that his eligibility date for the 1999 ACP was 18 October 1998, that his ACP contract had his 14th year of TAFCS calculated as 24 May 2005, that his date of commissioning was 15 June 1992, and his actual 14th year of TAFCS would have been 15 June 2006.  

3.  The applicant provides a statement of support from the current Program Manager for the Aviation Continuation Program, dated 13 February 2009; his ACP agreement; an addendum to the ACP agreement; a DA Form 71 (Oath of Office - Military Personnel), dated 15 June 1992; a message authorizing the Fiscal Year 1999 (FY99) Aviation Continuation Pay bonus, dated January 1999; a memorandum, dated 17 December 1992; and active duty orders, dated 28 April 1989.   

CONSIDERATION OF EVIDENCE:

1.  Having prior active duty enlisted service, the applicant was appointed a Warrant Officer One (WO1) in the U.S. Army Reserve (USAR), effective 24 May 1989.  He was promoted to Chief Warrant Two (CW2), effective 24 May 1991 and to Chief Warrant Officer Three (CW3), effective 1 May 1997.

2.  On 4 March 1999, the applicant signed an ACP agreement.  This agreement states, in pertinent part, that he agreed to remain on active duty until 24 May 2005, at which time he would complete 14 years of TAFCS.  The applicant provided an addendum to the ACP agreement wherein he indicated that he did not have commissioned officer time prior to 24 May 1991.

3.  The applicant was promoted to Chief Warrant Officer Four (CW4), effective
1 June 2003 and to Chief Warrant Officer Five (CW5), effective 1 May 2008.  

4.  In support of his claim, the applicant provided a statement from the current Program Manager for the Aviator Continuation Program.  He states, in pertinent part, that the applicant met all the requirements to participate in the ACP, that there is a minority group of warrant officers whose commissioned service did not start with promotion to CW2, and that the applicant is one of those individuals.  He points out that the applicant began his commissioned service when he signed an oath of office on 15 June 1992 accepting the appointment as a Reserve Commissioned officer and that when determining his agreement's 14 year end date it should have been 14 years from his 15 June 1992 date.  That should have made his end date 14 June 2006, not 24 May 2005.  The direct impact was to deny the applicant 1 year and 21 days or approximately $12,493 for which he was completely entitled had the agreement end date been figured correctly.   

5.  In the processing of this case, an advisory opinion was obtained from the Officer Personnel Policy Integrator, Office of the Deputy Chief of Staff, G-1, in Washington, D.C.  The advisory official states that the signature date on a DA Form 71 is not the start of commissioned service.  The applicant's commissioned service began when he was promoted to the permanent reserve grade of CW2 on 24 May 1991 and not the date that he signed the DA Form 71 (15 June 1992).  That office concluded that the applicant's years of commissioned service were accurately calculated and that his bonus payments were correctly administered.  The opinion was based on Title 10, U.S. Code, section 12241(b), second sentence:  "Appointments made in a permanent reserve grade of chief warrant officer shall be made by commission by the secretary concerned."

6.  On 22 June 2009, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant did not respond within the given time frame.

7.  Military Personnel (MILPER) Message Number 99-064 approved the FY99 Aviation Continuation Pay program for the period 17 October 1998 – 
30 September 1999.  Effective 17 October 1998, a long-term ACP bonus would be offered to Army AH-64 pilots in valid AH-64 billets.  To receive ACP, warrant officers must be entitled to aviation career incentive pay; be in grades CW2, CW3, and CW4; be qualified to perform operational flying duty in AH-64; be assigned to a valid AH-64 flying position and remain in an AH-64 flying position for the entire period of agreement; have completed at least 6 years, but less than 13 years of aviation service on the effective date of the agreement; have completed any active duty service commitment incurred for undergraduate aviator training; and agree to remain on active duty to complete 14 years of commissioned service.  ACP will be paid in annual installments of $12,000 per year.  The standard ACP agreement length will be through completion of 14 years commissioned service.  Commissioned service normally starts at promotion to CW2.  This program applied to the Active Army only.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, evidence of record shows he was promoted to CW2 on 24 May 1991.  Since MILPER Message Number 99-064 states that commissioned service normally starts at promotion to CW2, and since Title 10, U. S. Code states that appointments in a permanent reserve grade of chief warrant officers shall be made by commission, it appears the computation of the applicant's TAFCS was properly calculated at    24 May 1991.  

2.  The advisory opinion concluded that the applicant's bonus payments were correctly administered. 

3.  Based on the foregoing, there is no basis for granting the applicant's requested relief.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_____x___  ____x____  ____x____  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________x____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090004735



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004735



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1