RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-00305

 					COUNSEL:   

					HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

The Flying Evaluation Board (FEB), which removed him from Fixed 
Wing Training, be removed from his records.

His records be corrected to reflect he was awarded the wings and 
rating of a helicopter pilot. 

His records be corrected to reflect he was awarded the wings and 
rating as a fixed wing pilot.



APPLICANT CONTENDS THAT:

Through counsel, the applicant contends that he was not treated 
justly by the Air National Guard when they required him, 
arbitrarily and capriciously, to attend Fixed Wing Qualification 
(FWQ) Training prior to attending predator training.  

In 2008, the applicant, a former Army helicopter pilot and 
decorated combat veteran, decided to change his status with the 
Texas Air National Guard (hereinafter TXANG) when they promised 
to send him to training to become a Predator (UAV/RPA) pilot, 
via the Air Force MQ-1 Predator Pilot Sensor Officer Basic 
Course (PSOBC).  In February 2008, the TXANG informed him that, 
as a "Helicopter Only" rated pilot, he would not be required to 
undergo formal fixed wing training, but would be ordered to 
travel directly to Predator training, which was scheduled for 
10 March 2008.  

At that time, entry into Predator training was open to non-rated 
personnel for the Air Force.  Apparently, and unknown to the 
applicant, the Air National Guard (ANG) decided not to follow 
the Air Force Predator entry requirements as outlined in AFI 
11-402, Aviation and Parachutist Service Aeronautical Ratings 
and Aviation Badges, instead they decided he could not enter 
Predator training without first completing a fixed wing aviation 
training program; FWQ.  

Shortly after completing the Joint Fire Power Course, a 
prerequisite to PSOBC, the applicant was directed to return to 
TXANG and told that, in fact, he would be required to first 
complete a fixed wing training program.  Thus, pursuant to his 
agreement, he was sent to the training at Laughlin Air Force 
Base, Texas, for fixed wing training.  The applicant soon 
discovered that the fixed wing program was not equipped, 
designed, or prepared to handle rated helicopter pilots who 
were in the pipeline for Predator training.

On 21 October 2008, the applicant satisfactorily completed the 
first phase of FWQ in a T-6. He was then advised he had to 
complete a second phase of FWQ training in the T-38, amended 
to the T-1, both jet aircrafts.  Normally, the second phase of 
FWQ is designed to prepare pilots for the type of aircraft 
they will eventually fly, which was unnecessary for future 
Predator pilots.

He encountered some difficulties in T-1 training, connected in 
part with the hostile environment he experienced due to the 
lack of a formal FWQ program for rated helicopter pilots.  Even 
though he was initially led to believe he passed a T-1 
navigation check-ride on 27 March 2009, he was subsequently 
informed that he failed the check-ride.  After the confusion 
was resolved, he returned to the navigation phase of T-1 
training.

On 26 June 2009, he flew his mission familiarization check-
ride, the final end-of-course T-1 check-ride required before 
graduating from FWQ.  Despite irregularities in the scoring of 
his ride, he was told he failed the check-ride.  This meant he 
had to fly a Mission Familiarization "Elimination" check-ride 
with his squadron commander.  It was flown on 1 July 2009.  As 
a result of receiving a failing score, he was scheduled to meet 
a Flying Evaluation Board (FEB).

By unanimous vote, the FEB determined that the applicant’s 
training lacked appropriate supervision and structure to assure 
his success in the T-1 section Fixed Wing Qualification (FWQ) 
training and negatively impacted his training.  As a result of 
this and other factual findings, the majority of the three-
member panel recommended the applicant be reinstated and 
given another opportunity to demonstrate the ability to meet 
course standards."  In a minority recommendation, one member 
of the FEB expressed the opinion that he should be eliminated 
from FWQ, but that he should nonetheless be allowed to 
complete "the MQ-1 [Predator] training program."

The applicant, confronted with the option of re-entering FWQ 
only at Laughlin AFB, declined to exercise that option.  
Because there was no written NGB policy that required him to 
complete FWQ prior to entering Predator training, he felt 
that such a policy, which was inconsistent with Air Force 
policy, was arbitrary, capricious and unreasonable.  On 3 
and 4 June 2010, a new FEB was convened based on his 
decision not to further participate in FWQ at Laughlin AFB, 
TX. At this new FEB, he was given an opportunity to 
reconsider his decision to not undergo further FWQ training 
at Laughlin.  After reflecting upon this possibility 
overnight, he returned to meet the FEB the next day with a 
decision that, despite his original misgivings about whether 
he would be treated fairly, he would proceed with training 
at Laughlin. After receiving the applicant’s decision, the 
second FEB, in a split decision, recommended his 
elimination from FWQ training.  

After the hearing, the applicant, through counsel in a letter 
dated 21 July 2010, challenged the impartiality of the second 
FEB, noting that the Senior Board Member (SBM), one of the 
members who voted with the majority, was serving under the 
squadron commander who was vigorously attacked by the 
applicant’s lawyers in the first FEB and who testified in the 
second FEB. The SBM should have recused himself from 
participation as a board member because, as a minimum, it 
appeared that he lacked impartiality. 

On 21 January 2011, the Commander of the Air National Guard 
accepted the second FEB's recommendation, effectively denying 
relief from the claim that the SBM of the second FEB should 
have recused himself from participating as a board member.  
Subsequently, the applicant separated from the TXANG because 
of the NGB determination that he was not eligible to enter 
Predator training without first completing FWQ.  His position 
with the TXANG had been contingent upon successfully qualifying 
as a Predator pilot.

The applicant believes that he successfully completed FWQ and 
T-1 training.  He believes that his squadron commander, for 
whatever reason, unjustly failed him in the final FWQ check-
ride.  Despite the failing grade he received on his last two 
check-rides, the evidence presented at the FEB actually reflects 
satisfactory completion of T-1 training and that he should be 
awarded his wings and the appropriate aeronautical rating. 

Finally, he feels it was unjust to direct him to stop wearing 
the Air Force Senior Wings, which had been awarded by the 
Aviation Review Board and the XXX Reconnaissance Wing, where 
he was assigned when he was selected to attend Predator 
training.  He never sought, nor is he now seeking a jet rating 
in the TXANG.  He simply wanted to serve as a Predator pilot 
and desires that his records be corrected to reflect his actual 
aviator qualifications.

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




STATEMENT OF FACTS:

The applicant is a former member of the TX Air National Guard, 
who was discharged on 23 June 2011 and appointed as an officer 
in the United States Army effective 24 June 2011.

According to documentation provided by the applicant on 20 
October 2009, an FEB was convened after the applicant failed the 
final T-1 check ride of the Fixed Wing training.  On 22 October 
2009, the majority recommended the applicant be reinstated and 
given another opportunity to demonstrate the ability to meet 
course standards.  The minority found reinstatement was not 
warranted due to the applicant’s difficulties throughout the T-1 
portion of the FWQ program and felt reinstatement was not 
warranted.  The FEB also stated, due to the demeanor of the 
witnesses and the testimony given, the situation at Laughlin 
would be problematic and the FEB unanimously recommended the 
needs of the Air Force would be best facilitated by completion 
of FWQ training at another location. 

Based on the applicant’s withdrawal from FWQ training a second 
FEB was convened on 3 June 2010.  On 4 June 2010, the majority 
of the FEB members found the applicant should be eliminated from 
aviation service based on his invocation of the Drop on Request 
option from the FWQ program as per AFI 11-402, paragraph 
4.3.7.3.  However, the minority opined the applicant should be 
reinstated in the previously approved training program.   

On 21 January 2011, the Director, Air National Guard concurred 
with the FEB’s recommendation that the applicant be removed from 
Air Force aviation service.  The action also prohibited him from 
flying Air Force aircraft on active duty, with the Air National 
Guard, or the Air Force Reserves.  He was also prohibited from 
wearing United States Air Force pilot wings.

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/A3 recommends denial.  In 2008, the applicant, a former 
Army helicopter pilot, joined the Air National Guard to fill a 
position as a Predator (RPA) pilot.  At that time, the National 
Guard Bureau (NGB) required all RPA operators possess a USAF 
fixed wing rating (FWQ) in order to attend RPA training due to 
the unknown future of this new career field.  The ANG chose to 
be more restrictive than AFI 11-402 and exceptions were only 
considered when the member had a significant amount of fixed 
wing pilot in command flight time.

The applicant attended fixed wing training in April 2008. He 
was eliminated from FWQ in T-1's.  As a result of failing a 
formal training course, he was scheduled to meet a Flying 
Evaluation Board (FEB).  In 2009, this FEB reinstated the 
applicant into training for another opportunity to 
demonstrate the ability to meet course standards.  The staff 
at Laughlin and the Numbered Air Force (NAF) worked together 
to construct a T-l requalification program.  The training would 
be conducted at Laughlin by NAF Instructor Pilots (IPs) due 
to the applicant’s concerns about receiving fair treatment 
by the Laughlin IPs.

The applicant decided not to attend this formal requalification 
training course and to withdraw from training.  Had he chosen 
to attend the requalification training offered, he would have 
graduated and been awarded the fixed wing pilot aeronautical 
rating.  The applicant was counseled about returning and 
finishing the training, as well as the correlation of limiting 
his aviation service.  

In accordance with AFI 11-402, an FEB was convened as the 
applicant’s decision was an attempt to limit aviation service. 
AFI 11-402 clearly states, in paragraph 4.3.7.3:  Attempts to 
limit aviation service, such as a Drop On Request (DOR) from 
formal training courses, requests for voluntary 
disqualification based on personal desire to terminate aircrew 
duty, or requests to decline a particular assignment following 
formal training indicating there is no evidence of an error or 
an injustice, is a valid reason to convene an FEB. In 
addition, AFI 11-402 is clear in paragraph 4.5.6.3, where it 
states, “Disqualification is appropriate for an aircrew 
member who attempts to DOR from formal training, or attempts 
to place limits on aviation service or future assignments."

The FEB in 2010 determined the applicant should be 
eliminated from AF aviation service.  In addition, he was 
prohibited from wearing the USAF pilot wings.  The applicant 
made a conscious decision to withdraw from training and in turn, 
limited his aviation service.  

The complete NGB/A3 evaluation, with attachment, is at 
Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluations was forwarded to the 
applicant on 21 May 2015 for review and comment within 30 days 
(Exhibits D and E).  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 injustice warranting some 
measure of relief.  While the board does not find sufficient 
evidence of error or injustice to warrant granting applicant’s 
request to award him the rating and wings of a fixed wing pilot, 
the board does find that there are extenuating circumstances 
that contributed to his failure to complete fixed wing training.  
At the heart of this case appears to be the findings and 
recommendations of two FEBs the applicant met.  The applicant 
met the first FEB in October 2009 after being eliminated from 
fixed wing training upon failure of his Mission Familiarization 
Checkride.  It is the belief of this board that the findings of 
the first FEB are instructive and significant in determining 
whether the applicant has been the victim of error or injustice.  
The board finds the following summarized findings notable:

	  a.  The FEB found unanimously the applicant’s training was 
negatively impacted by a lack of appropriate supervision and 
structure.

	  b.  The applicant’s final ride seemed inconsistent with the 
grade received throughout the airdrop phase of training and was 
significantly below his performance on previous rides.

	  c.  The applicant previously graduated from a formal flying 
training course in the Army and accumulated over 1500 flying 
hours, including 900 in combat.

	  d.  The FEB found that the applicant had a reasonably high 
chance of success in completing the follow-on training to the 
fixed wing training.

Based on its findings, the FEB, by majority vote, recommended 
the applicant be reinstated into fixed wing training.  
Interestingly, the minority member while not recommending 
reinstatement believed the applicant would successfully complete 
the program.  Also significant is the unanimous recommendation 
of the FEB that if reinstated, the needs of the Air Force would 
be best facilitated by completion of fixed wing training at 
another location.  The board notes that while the Air Force 
moved to reinstate the applicant to training, it elected not to 
heed the recommendation to send the applicant to another 
location.  Instead, as offered in the advisory prepared by 
NGB/A3, the base and Numbered Air Force staff worked together to 
construct a requalification training program to be conducted at 
the same location, albeit with a different cadre of instructors.  
When offered this remedy, the applicant verbally expressed his 
reservations and eventually advised his commander he would not 
accept the training.  As a result of the applicant’s actions, 
his command moved to place him before a second FEB based on what 
was considered to be an attempt by the applicant to limit 
aviation service by initiating a Drop on Request (DOR) from the 
training.  The second FEB found that the applicant invoked the 
DOR option.  A majority of the FEB then recommended the 
applicant should be eliminated from aviation service.  This 
board finds that while technically the applicant may have 
invoked the DOR option, in the view of the board the applicant 
was placed in an untenable position without a viable option.  It 
is noted the applicant did eventually indicate he would attend 
the training although with understandable reservations.  After 
considering the entire evidence of record to include the 
significant findings of the first FEB, it is the conclusion of 
the board that only providing the applicant the option of 
reentering training at the same location constituted an 
injustice.  The Air Force OPR has not provided rationale for why 
the first FEB’s recommendation to move the applicant to a 
different training location was or could not be accommodated.  
It does not appear the command was focused on providing the 
applicant with a reasonable opportunity to complete the fixed 
wing training.  After weighing the significant adverse impact 
upon the applicant of a DOR finding along with sequence of 
events leading to the DOR, the board believes on balance the 
impact on the applicant is disproportionate to the actions he 
took.  The board does not believe the applicant’s actions, when 
considering his overall aviation record, to include time in 
combat, should result if his total disqualification from all 
aviation service.  Therefore, in the interest of justice, we 
believe the applicant’s records should be corrected to the 
extent indicated below.  


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to the APPLICANT be corrected to show that the 
deciding official (Director, ANG) agreed with the Flying 
Evaluation Board (FEB), that the applicant voluntarily 
terminated training but found that such termination was not a  
drop on request (DOR) as contemplated under AFI 11-402, Aviation 
and Parachutist Service Aeronautical Ratings and Aviation 
Badges, paragraph 3.7.1.2.4, and that given the circumstances 
the applicant be terminated from training but allowed to retain 
previous helicopter wings and ratings.


The following members of the Board considered AFBCMR Docket 
Number BC-2014-00305 in Executive Session on 9 July 2015 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-2014-00305 was considered:

	Exhibit A.  DD Form 149, dated 7 Jun 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, NGB/A3, undated, w/atch.
	Exhibit D.  Letter, SAF/MRBR, dated 21 May 15.
	Exhibit E.  Letter, SAF/MRBR, dated 21 May 15.