IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100018176 


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 payment of $45,000.00 under the Aviation Continuation Pay (ACP) Program.

2.  He states the U.S. Army created a wrongful double standard which led him to believe he would be allowed to retire and, therefore, he did not apply for the Fiscal Year (FY) 2008 ACP Program.  However, he maintains he was retained under stop loss and not allowed to retire.  He argues the stop loss obligated him to the same 3-year period of service without the benefit of the $45,000.00 incentive payment.  He explains he was fully eligible under the provisions of the FY08 ACP Program for maintenance test pilots (MTP) and maintenance test flight examiners (MTFE) to receive the $45,000.00 ($15,000.00 per year) in return for a 3-year commitment.  He adds that since he would reach 20 years of Federal military service during the 3-year period and desired to retire on 30 November 2009, he decided not to take advantage of the program.  He offers his first request for retirement for a retirement date of 30 November 2009 was denied, but his second request for a retirement date of 31 October 2010 was approved.  He insists that if he had not been led to believe his unit would allow him to retire, he would have taken advantage of the FY08 ACP Program and received the total sum of $45,000.00.

3.  He provides the following:

* self-authored statement, dated 30 June 2010
* Orders 231-103, dated 5 December 1988
* Orders 155-5, dated 11 August 1989
* Order 256-3, dated 12 September 2000
* Military Personnel (MILPER) Message Number 07-305, FY08 ACP Program (MTP and MTFE)
* self-authored statement, dated 4 December 2010
* officer evaluation reports
* DA Form 4187 (Personnel Action), dated 30 June 2010
* FY08 ACP Agreement, dated 1 October 2007
* memorandum, subject:  Authority to Conduct and Initial Maintenance Evaluator (ME) Evaluation, dated 16 October 2007
* memorandum, subject:  Initial ME Qualification Evaluation, dated 17 December 2009
* Aviation Brigade Action/Distribution Memorandum, dated 2 December 2008
* memorandum, subject:  Request for Voluntary Retirement for [Applicant], dated 1 November 2008
* Order 181-02, dated 30 June 2006
* Order 056-010, dated 25 February 2009, with unit movement log
* memorandum, subject:  Notification of Deployment for [Applicant], dated 14 September 2006
* Orders 337-0110, dated 3 December 2009
* numerous e-mails
* DA Form 2142 (Pay Inquiry), dated 28 April 2010
* Military Pay E-Message 10-005, subject:  Retroactive Stop Loss Entitlement Processing Information
* memorandum, subject:  Request Exception to Policy for Stop Loss/Stop Move for [Applicant], dated 4 December 2008
* memorandum, subject:  Request for Stop Loss/Stop Move, dated 7 July 2009
* leave and earnings statements (LES)
* MILPER Message 089-2009, Stop Loss Special Pay, dated 26 March 2009
* two supporting statements, dated 26 May 2010 and 1 June 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 14 July 1982.  On 13 July 1984, he was honorably released from active duty and credited with completing 2 years of active duty service.

2.  He was appointed as a Reserve warrant officer and served on active duty from 18 July 1989 until he was honorably released on 1 April 1997.  On 5 July 2000, he was ordered to active duty.  On 31 October 2010, he was honorably retired in the grade of chief warrant officer four.

3.  Orders 256-3, dated 12 September 2000, show he was placed on flying status and he was authorized entitlement to Aviation Career Incentive Pay (ACIP) effective 1 July 2000.

4.  Item 18 (Remarks) of his DD Form 214 (Certificate of Release from Active Duty) shows he served in Iraq from 9 March 2006 to 5 January 2008 and from 30 April 2009 to 30 April 2010.

5.  On 1 November 2008, he requested voluntary retirement for a retirement date of 1 December 2009.

6.  An unsigned memorandum, dated 4 December 2008, shows the applicant sought his commander's endorsement for his request for an exception to policy for stop loss/stop movement.  He said the applicant desired to retire from active Federal military service effective 30 November 2009.  However, the commander wrote on the memorandum that he "will not request" and endorsed the document with his signature.

7.  MILPER Message 089/2009, dated 26 March 2009, subject:  Stop Loss Special Pay, stated that effective March 2009 Active Army enlisted and officer personnel involuntarily held past their contractual expiration of term of service or approved separation/retirement dates due to stop loss were entitled to Stop Loss Special Pay.  The message further stated that officers assigned to active Army units which have deployed or will deploy before 1 January 2010 and whose request to separate or retire was disapproved by the Army due to the stop loss restriction may be eligible for retroactive Stop Loss Special Pay.

8.  On 28 April 2010, he applied for retroactive Stop Loss Special Pay.  The DA Form 4142 explained that he was missing payments from December 2009 to March 2010.  On this form he stated his retirement date of 30 November 2009 was disapproved.

9.  On 4 December 2010, he provided a self-authored statement and his LES's from December 2009 through October 2010.  He stated he was notified by the Fort Hood Judge Advocate General that the U.S. Army Human Resources Command Incentive Pay Branch was unwilling to pay him the ACP because he was compensated for that period through Stop Loss Special Pay.  However, he said he was never compensated for the entire period and highlighted his LES's from April 2010 and May 2010 to show he only received $500.00 for stop loss for those two periods.  He also provided numerous e-mails concerning his request for retroactive Stop Loss Special Pay.

10.  He provided two supporting statements from fellow warrant officers who recalled a meeting in which he made his intent to retire on 30 November 2009 known to the battalion commander.

11.  In the processing of this case, an advisory opinion was obtained from the Officer Career Policy Integrator, Office of the Deputy Chief of Staff, G-1 Headquarters, Department of the Army.  An official in the G-1 stated the applicant is not entitled to the additional year of ACP.  He said the ACP Program was designed to ensure that aviator inventories were sufficient to meet military operational requirements.  He explained that on 20 January 2006, the applicant executed an ACP contract under MILPER Message 06-022, FY06 ACP Program MTP and MTFE, and accepted a 3-year active duty service obligation (ADSO) which ended on 19 January 2009.  In return for the 3-year ADSO, he was paid a total of $36,000.00 ($12,000.00 per year).

12.  On 8 November 2007, MILPER Message 07-305, FY08 ACP Program MTP and MTFE, was released which also required a 3-year ADSO.  The annual bonus amount was increased to $15,000.00 per year and authorized officers under the previous ACP agreement to re-sign provided they agreed to a new 3-year ADSO. 
The ACP Program was extended again for FY09 under MILPER 
Message 08-256.  The official said the applicant declined both opportunities in FY08 and FY09 to sign a new ACP contract within the established windows and opted to pursue his retirement date of 30 November 2009.  He said the applicant's decision to pursue retirement rather than apply for the FY08 ACP and incur a new 3-year ADSO was entirely his decision.   The official opined that the missed opportunity to request a new ACP bonus was an afterthought only when it became evident that the applicant would be extended beyond his original intended retirement date.

13.  The applicant was provided a copy of this advisory opinion and responded with a rebuttal on 12 March 2011.  He stated his delay in submitting the ACP was no afterthought, but one of being keenly aware that once the ACP was granted, a new 3-year ADSO begins and he desired to retire as soon as possible.  He cited several reasons why he believes he should be entitled to receive the ACP incentive of $45,000.00:

* recognized technical skills as a UH-60 MTP and MTFE
* desired to retire and did not obligate himself to an additional 3-year ADSO
* led to believe he would be allowed to retire
* spent nearly a year trying to gain disposition of retirement from new chain of command
* retained under stop loss and made to serve the entire 3-year ACP ADSO
* has not been paid for the 11-month period of stop loss
* administrative incompetence experienced throughout the entire matter from new chain of command
* clearly earned the entire ACP incentive payment of $45,000.00 by being forced to remain of active duty until 31 October 2010

14.  MILPER Message 07-305, FY08 ACP Program MTP and MTFE, states that qualified MTP/MTFE aviators may cancel current ACP agreements which end in FY08 or later and enter into a new agreement at the higher bonus level as long as the new agreement meets the required agreement year lengths (i.e., 3 years). All new agreements must be for at least 1 additional year ADSO from the previous agreement/ADSO cancellation.  In order to receive the ACP, officers must meet the eligibility requirements during the effective dates of the FY08 MTP/MTFE ACP Program (1 October 2007 to 30 September 2008).  The message further states that officers who have previously entered into an ACP agreement and are still receiving payments under that agreement or are under an ADSO from that agreement, unless they are opting to lengthen that agreement, are ineligible.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was under the FY06 ACP contract of $36,000.00 ($12,000.00 per year) with an ADSO that ended on 19 January 2009.  In accordance with MILPER Message 07-305, he had from 1 October 2007 to 30 September 2008 to apply for the new program.  Since he was already under an ACP agreement, if he had applied during the eligible window, his ADSO would have been adjusted in accordance with the cited message. 

2.  The message authorizing him $45,000.00 ($15,000.00 per year) for the ACP Program is specific.  In order to qualify for the incentive he must have canceled his current ACP agreement and entered into a new agreement for 3 years with at least 1 additional year ADSO from the previous agreement/ADSO cancellation.  Additionally, he must have applied during the program window.

3.  Therefore, his argument that his request should be approved based on his recognized technical skills, denial of his requested retirement date, subsequent stop loss, and the fact that he was not paid "all" of his Stop Loss Special Pay is not sufficient evidence to justify approval.  It appears he received his last installment of $12,000.00 under his previous ACP agreement that ended in January 2009.  Therefore, it is unknown why he believes he is entitled to $45,000.00 at $15,000.00 per year.  Nevertheless, as specified in the advisory opinion, he declined two opportunities to sign a new ACP contract and opted to pursue his requested retirement date of November 2009.  Knowing that there were stop loss policies in effect, he took his chances and unfortunately lost.  Since he failed to apply for the ACP Program and execute an agreement as required, he is not eligible for payment of $45,000.00 under the ACP Program.

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 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)                                         AR20100018176



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ABCMR Record of Proceedings (cont)                                         AR20100018176



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