IN THE CASE OF:  	  

		BOARD DATE:  14 July 2015	  

		DOCKET NUMBER:  AR20140017814 


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 Aviator Continuation Pay (ACP) and Assignment Incentive Pay (AIP).

2.  The applicant states:

	a.  He needs his military pay records corrected.

	b.  He signed a Fiscal Year (FY) 2012 ACP agreement during his last active duty assignment period of 15 July 2012 to 14 July 2014 for which he was to be paid two $25,000.00 payments.  His ACP agreement states he would be paid $25,000.00 per year if he performed duty in an Army special operations assignment for 2 years.  He served and he was not paid.

	c.  He signed for another bonus, the AIP for the 160th Special Operations Aviation Regiment (SOAR), in a DA Form 4187 (Personnel Action), dated 6 August 2012, and was not paid the AIP for the same reason.

	d.  He was voluntarily recalled from the "Individual Retired Reserve," but he was a recalled retiree, not a recalled Reservist.  Through an orders error and ultimately a local finance office decision, he was coded as a Reservist for pay purposes.  He was recalled to active duty as a retiree under Title 10, U.S. Code, section 688, and should have been considered active duty for pay purposes.  There is no question of him satisfying the contract to receive his two ACP payments.  The finance office coded him as a Reserve warrant officer, not a recalled retiree, and treated him accordingly.

3.  The applicant provides:

* Military Personnel (MILPER) Message Number 12-098, dated 30 March 2012, subject:  FY12 ACP for Army Special Operations Aviation (ARSOA)
* U.S. Army Human Resources Command (HRC) Orders A-05-209218, dated 21 May 2012
* FY12 ACP Program for ARSOA Agreement, dated 15 July 2012
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 30 April 2011 and 14 July 2014
* HRC memorandum, dated 29 September 2014, subject:  Support for Payment from FY12ACP Program for ARSOA Agreement, dated 15 July 2012, for (Applicant)
* Headquarters, 3d Infantry Division and Fort Stewart, Orders 314-0024, dated 10 November 2010
* Headquarters, 3d Infantry Division and Fort Stewart, Orders 014-0009, dated 14 January 2014
* DA Form 4187, dated 6 August 2012
* email

CONSIDERATION OF EVIDENCE:

1.  Having prior active enlisted service in the Regular Army (RA), the applicant was commissioned a warrant officer one on 27 January 1995 and he entered active duty in military occupational specialty (MOS) 153D (UH-60 pilot) and MOS 153E (K4 MH-60 pilot).  He was promoted to chief warrant officer four (CW4) effective 1 September 2007.

2.  On 30 April 2011, he retired in the rank of CW4 and was placed on the Retired List effective 1 May 2011.

3.  On 15 July 2012, he was voluntarily recalled to active duty from retired status for a period of 730 days to serve as an aviation maintenance test pilot.

4.  His records show he applied for ACP on 15 July 2012 for a period of 2 years with annual payments of $25,000.00.  His request was approved on 24 September 2012.

5.  A DA Form 4187, dated 6 August 2012, shows he submitted a request for AIP.  He volunteered to extend his assignment with the 160th SOAR for an additional 24-month assignment in exchange for payment of $1,000.00 per month in AIP.  His request was approved on 6 August 2012.

6.  On 15 July 2014, he was released from active duty and reverted to retired status effective 16 July 2014.

7.  He provided a memorandum from a Personnel Management Specialist in the HRC Incentive Pay Branch, dated 29 September 2014, subject:  Support for Payment from FY12 ACP Program for ARSOA Agreement, dated 15 July 2012, for (Applicant), which states:

	a.  This memorandum is in support of the applicant's request for payment of two $25,000.00, total $50,000.00, annual payments from the FY12 ACP Program for ARSOA.

	b.  He has been the point of contact for the ACP Program since 2004.  When the FY12 ACP Program was established, he coordinated with G-1 points of contact and coordinated the intent of the program and who was eligible.  Prior to and during this period, a number of retired special operations qualified pilots were recruited to return to the Active Army due to the special training on SOAR aircraft they had received while serving on active duty, thus making it more cost effective to recall them.  The members recalled were maintained as part of the Total Army inventory in the "Individual Retired Reserve," not part of the Individual Ready Reserve inventory.  Pilots recalled from the "Individual Retired Reserve" were to be eligible for the ACP Program.

	c.  It was under this understanding that the applicant entered active duty.  He sent a draft agreement for the applicant to sign.  He signed the agreement, but it was not processed until 24 September 2012 due to an HRC administrative error.  In October 2012, the agreement was forwarded to the Defense Finance and Accounting Service (DFAS).

	d.  In January 2013, he received information the applicant had not received his initial $25,000.00 payment from his FY12 ACP agreement, it was determined that he was coded as a Reservist and would have to receive payment through the Reserve pay system, not the active pay system.  This action has bounced around both the active and Reserve pay systems for the last 18 months with nothing but email being received by the applicant.

	e.  Bottom line, the applicant signed an agreement in July 2012 which states he is due two $25,000.00 payments which have not been received.  He agrees the applicant is due a total of $50,000.00, which the active pay system and the Reserve pay system can't decide who should pay.  Neither pay system denies that it is owed, but neither pay system can figure out who pays.

8.  An advisory opinion was obtained from the Chief, Officer Division, Department of the Army Office of the Deputy Chief of Staff, G-1, in the processing of this case.  The G-1 Officer Division Chief states:

	a.  The FY12 ARSOA ACP was authorized under MILPER Message Number 12-098.  A review of the contents of that message indicates the applicant met the eligibility requirements specified in that message while serving on active duty as a pilot in the 160th SOAR.

	b.  A signed ACP agreement submitted by the applicant indicates he applied for ACP on 15 July 2012.  There was a delay of over 2 months noted between the date he signed his application and the date the commander signed.  This delay is acknowledged in a memorandum provided by the HRC Incentive Pay Branch and is explained as an administrative error.  The delay in obtaining the commander's signature does not appear to have any bearing on the applicant's eligibility to receive ACP as specified in the signed agreement.

	c.  A review of the AIP agreement, MILPER Message Number 10-106 (AIP – 160th SOAR), as well as the Army G-1 AIP extension memorandum indicates the applicant met the eligibility requirements specified in that message as well as the eligibility requirements in the extension memorandum.

	d.  The applicant submitted paperwork (DA Form 4187) that indicates he executed a request for AIP on 6 August 2012.  The DA Form 4187 was signed by his commander on the same day.  The remarks section of the DA Form 4187 specifies a 24-month assignment in exchange for payment of $1,000.00 per month.

	e.  In block 1 of the application, the AIP instructions indicate the commander's name should appear in this block.  The commander's name is not present, rather the word "Commander" is inserted.  This discrepancy does not change the intent of the DA Form 4187 and the commander's name is clearly depicted in block 12.

	f.  The address listed in block 2 does not match the address specified in the original AIP MILPER message.  The reason for this discrepancy is that HRC moved from Alexandria, VA, to Fort Knox, KY, during the period of time the AIP MILPER message was in effect.  This discrepancy has no bearing on the intent or validity of the DA Form 4187.

	g.  In block 11 of the DA Form 4187, the "IS APPROVED" block is checked.  The AIP MILPER message indicates the "RECOMMENDED APPROVAL" block should have been checked.  Again, this discrepancy does not change the intent of the DA Form 4187.

	h.  A document found in the applicant's packet indicates the effective starting date of the AIP is 14 July 2012.  However, the date listed on the associated DA Form 4187 is 6 August 2012.  This is a difference of 3 weeks and 2 days and may have a small impact on calculation of the AIP payments.  There is no explanation in the submitted packet for the discrepancy between the two dates.

	i.  The applicant's original retirement orders indicate he retired from active duty on 30 April 2011 and was placed on the Retired List on 1 May 2011.  As such, he was retired from the Regular Army.  He was subsequently recalled from retirement into active duty on 21 May 2012.  At no time was he assigned to the Reserve Component.  The applicant makes reference to DFAS coding him as a Reservist instead of a recalled retiree (Regular Army).  This point of contention may explain why DFAS was unable or unwilling to make payment.

	j.  Based upon the above information, G-1 recommends approval of the applicant's request for payment of both the ACP and AIP as specified in the enclosed documents.

9.  The advisory opinion was furnished to the applicant for comment.  He did not respond.

10.  MILPER Message Number 12-098 states the Army continues to offer the ACP Program to include most aviation warrant officer primary MOSs assigned to the special operations force in FY12.  For 2 to 6-year contracts the bonus amount is $25,000.00 annually.

11.  MILPER Message Number 10-106 states the Office of the Under Secretary of Defense (Personnel and Readiness) authorizes the Army to offer one of the two 160th SOAR AIP Program options to eligible aviation warrant officers.  Aviation warrant officers with 21 years active Federal service or greater who are assigned to the 160th SOAR and have an MOS of 152C, 153E, or 154E are eligible for AIP.  Eligible warrant officers will execute a written agreement to serve an additional 24 months with the regiment and will be paid $1,000.00 per month for the obligated period.

12.  Army Regulation 601-10 (Management and Recall to Active Duty of Retired Soldiers of the Army in Support of Mobilization and Peacetime Operations) provides that a recalled retiree is a retired Soldier who is ordered to active duty from the Retired Reserve or the Retired List under Title 10, U.S. Code, section 688(a), 12301(a), or 12301(d), and serves in his or her retired status.  Regular Army retirees and members of the Retired Reserve who are recalled to active duty under Title 10, U.S. Code, section 688(a), will be included in the active duty end strength.

DISCUSSION AND CONCLUSIONS:

1.  The evidence confirms:

	a.  The applicant was recalled to active duty from a retired status for assignment with the 160th SOAR in MOS 153E (helicopter pilot) effective 15 July 2012.

	b.  On 15 July 2012, he applied for ACP for a period of 2 years with annual payments of $25,000.00.  His request was approved on 24 September 2012.

	c.  On 6 August 2012, he submitted a request for AIP by volunteering to extend his assignment with the 160th SOAR for an additional 24-month assignment in exchange for payment of $1,000.00 per month in AIP.  His request was approved on 6 August 2012.

	d.  On 15 July 2014, he was released from active duty and reverted to retired status effective 16 July 2014.

2.  The advisory opinion notes:

	a.  The FY12 ACP Program for ARSOA was authorized under MILPER Message Number 12-098.  The applicant met the eligibility requirements specified in that message while serving on active duty in the 160th SOAR as a pilot.

	b.  The applicant met the eligibility requirement for monthly AIP payments.

	c.  G-1 recommends approval of the applicant's request for payment of both ACP and AIP.

3.  Since it appears the applicant did absolutely nothing wrong and upheld his end of the agreement and per the advisory official's recommendation, it would be equitable to correct his military records to show he was authorized two ACP payments in the amount of $25,000.00 (total of $50,000.00) and AIP in the amount of $1,000.00 per month during the period August 2012 to July 2014.



BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing the Department of the Army authorized him to receive two ACP payments in the amount of $25,000.00 (total of $50,000.00) for the period July 2012 to July 2014;

	b.  showing the Department of the Army authorized him to receive AIP in the amount of $1,000.00 per month during the period August 2012 to July 2014; and

	c.  paying him the ACP and AIP as a result of the above corrections.



      _______ _   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)                                         AR20140017814



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ABCMR Record of Proceedings (cont)                                         AR20140017814



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