PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 2 August 2001
         DOCKET NUMBER: AR2001055375



         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Barbara J. Ellis		Member
Mr. John P. Infante		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that an active duty service obligation (ADSO) that was assigned to him by the Total Army Personnel Command (PERSCOM) be removed from his records.

3. The applicant states, in effect, he attended the UC-35 Aircraft Qualification Course (AQC) in 1999 and learned in October 2000, after having his request for release from active duty (REFRAD) denied, that he had incurred an ADSO based on his attendance at this course. He indicates that he never would have attended the course had he known it would result in an additional ADSO.

4. The applicant states that he attended the AQC in order to help support his unit, not to further his career, and that he was totally unaware of any associated ADSO for attending that specific UC-35 course prior to his attendance. He further claims that in June 1999, he was asked to attend the UC-35 course to fill a shortage of UC-35 pilots in Heidelberg, Germany and he accepted. He was notified that he would attend the course and on 26 June 1999, temporary duty (TDY) travel orders were published sending him to the course and he attended and successfully completed the course between 12 July and 6 August 1999. He claims he was never informed by anyone during this timeframe that he was incurring an additional ADSO.

5. On 2 August 2000, the applicant was selected for promotion to chief warrant officer three (CW3) and on 12 September 2000, he declined this promotion, integration into the Regular Army (RA), and he requested that he be REFRAD. Shortly thereafter his promotion declination was approved and orders for his RA appointment were revoked, which he claims fully established his intent to depart the Army.

6. The applicant also contends that on 10 October 2000, PERSCOM posted a message to its web-site, which stated that anyone completing the UC-35 AQC would incur an ADSO under the provisions of paragraph 2-7, Army Regulation 350-100, which governed military schooling ADSOs. He claims that PERSCOM clearly pointed out in this message that at that time there were no Training and Doctrine Command (TRADOC) sanctioned UC-35 AQCs, because it was a
non-standard aircraft, and that standard classification would not be completed until the fall, at which time an Army course could be established. He indicates that this clearly establishes that the Department of the Army (DA) knew it did not have a military qualification course for the UC-35 and thus, he never attended any military schooling governed by the regulation. In addition, he comments that, by regulation, DA was required to contact him and inform him that he would incur an ADSO but had never done so.

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7. The applicant also states that on 6 November 2000, PERSCOM published an
electronic message that approved his REFRAD on 13 February 2002, upon the completion of his permanent change of station (PCS) ADSO, which is the date he planned to leave the Army but on 7 November 2000, they published a second message, which revoked the first one and stated that he would be further retained on active duty to fulfill the ADSO he incurred for flight training. He also states that a case brought before this Board established a precedent for his case, by granting another Army aviator relief for exactly the same reasons, which should resolve any dispute as to the validity of the ADSO that PERSCOM has unfairly and arbitrarily attached to him.

8. In support of his application, the applicant provided the enclosed sworn statement, a memorandum from a Legal Assistance Attorney, Office of the Staff Judge Advocate (OSJA), Heidelberg, Germany; a copy of the TDY orders assigning him to the UC-35 AQC in question; a copy of his request for personnel action (DA Form 4187) requesting attendance at the AQC; a PERSCOM web-site message pertaining to ADSOs for AQCs; a copy of his declination of promotion and the PERSCOM approval; a copy of his request to revoke his integration into the RA and the PERSCOM approval; a copy of his request for REFRAD and associated documents; extracts of paragraphs 2-7 and 3-5 of Army Regulation 350-100; a copy of a redacted 1999 decisional document from this Board; and a copy of a Headquarters, DA message, subject: UC-35 Aviators.

9. The applicant’s military records show that on 1 October 1992, he was appointed a Reserve warrant officer and entered active duty in the rank of warrant officer one (W01).

10. In 1999, while assigned to the 214^th Aviation Battalion, Heidelberg, Germany, and holding the rank chief warrant officer two (CW2), the applicant attended the
UC-35 AQC from 12 July and 6 August 1999. The authorization for his attendance was contained in Travel Order Number 06-159, issued on 26 June 1999, by the Headquarters, United States Army Europe (USAREUR) and
7^th Army, Resource Management Office. This order contained no reference to the applicant incurring an additional ADSO as a result of attendance at this course.

11. On 12 September 2000, the applicant submitted separate memorandums formally declining his promotion to the rank of chief warrant officer three (CW3), declining integration into the RA, and requesting voluntary REFRAD at the end of his PCS ADSO.

12. On 19 September 2000, the applicant submitted a memorandum in regard to his request for REFRAD and requested an exception to policy for consideration of release beyond 6 months prior to his completing his ADSO.

13. On 27 September 2000, an endorsement from the Chief of Retirements and Separations Branch, PERSCOM, confirmed that the applicant’s request for REFRAD was not favorably considered and indicated that the applicant had an ADSO through 6 August 2002, as a result of his attendance at the UC-35 AQC.

14. On 5 October 2000, the Chief Officer Promotions, PERSCOM, issued a memorandum, which approved the applicant’s declination of promotion to CW3 and indicated that the applicant’s name would be removed from the promotion list.

15. On 6 November 2000, an electronic message, subject: REFRAD, was published by PERSCOM, which indicated that the applicant would be REFRAD on 13 February 2002, upon the completion of his ADSO based on his overseas PCS. However, on 7 November 2000, a second electronic message was released by PERSCOM, subject: REFRAD, which revoked the first message and indicated that the applicant would be further retained on active duty until
6 August 2002 to fulfill his ADSO for flight training.

16. On 17 November 2000, a memorandum issued by the Chief, Accessions Branch, confirmed that on that date an order had been published, which revoked the order that had authorized the applicant’s promotion to CW3 and integration into the RA.

17. The applicant provided a memorandum of support prepared by a legal assistance attorney, OSJA, Heidelberg, Germany, in which, counsel stated that the ADSO imposed on him by PERSCOM based on his attendance at UC-35 AQC was erroneous. It stated that DA advised the commander of USAREUR, in an April 2000 memorandum, that there was no Training and Doctrine Command (TRADOC) UC-35 qualification course, thus, if there was Army sanctioned
UC-35 course, there can be no additional ADSO incurred by the applicant. It further indicates that even if the UC-35 course were considered a qualification course, he could not have incurred an additional ADSO under the provisions of Army Regulation 350-100, which requires that officers be informed of ADSOs incurred either by the course regulation, course description in DA Pamphlet (Pam) 351-4, in other DA publications that describe the program, or in official orders to attend the course. Finally, it states that there is no UC-35 course regulation, the UC-35 qualification course is not listed in DA Pam 351-4 or in any other DA Pam and the applicant’s orders did not state that he would incur an additional ADSO as a result of his attendance at the course.

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18. In connection with the processing of this case, the Board requested of and received an advisory opinion from the Chief, Warrant Officer Division, PERSCOM, dated 25 May 2001. In it, PERSCOM officials opine that the applicant incurred a 3 year ADSO based on his attendance at the AQC under the provisions of paragraph 2-7f(1), Army Regulation 350-100, and while the applicant asserts that this course does not incur the ADSO because it is not a TRADOC course, he acknowledges that it is an AQC, which carries with it a
3 year ADSO. Further, PERSCOM officials point out that although the applicant asserts that he did not incur an ADSO because he was not advised of this obligation in the TDY order sending him to the course, the purpose listed in the TDY order in question is to attend the AQC and while the local command made a clerical error in omitting the ADSO statement, in the opinion of the officials responsible for this advisory opinion, it is reasonable to assume that the applicant was aware of the ADSO for this course because of his past experiences.

19. The PERSCOM opinion indicated that the applicant’s past experiences included his having incurred the same ADSO based on his attendance to the
C-12 AQC and the fixed wing multi-engine AQC, which he admits he was aware of in both cases. PERSCOM officials finally opine that training is expensive and very resource demanding and the applicant would not have been selected for attendance by his local command if they had not expected to be able to utilize him in that capacity for the period of the ADSO and his attendance to the course was approved at PERSCOM on the same basis. They conclude by indicating that waiver of this obligation would casue operational and manpower shortages and based on these reasons the requested relief should not be granted.

20. The applicant was provided a copy of the PERSCOM advisory opinion in order to have the opportunity to respond, which he did on 18 June 2001. In his rebuttal, the applicant indicated, in effect, that the governing regulation states that official orders that direct any event that results in an ADSO will contain the following statement: “Additional Active Duty Service Obligation of (given length) is incurred under provisions of (regulation)” and his orders did not contain any such statement. He also comments that in the PERSCOM advisory opinion, officials acknowledge the fact that the required ADSO statement was omitted from the orders sending him to the AQC and this should clarify any debate as to if he was or was not properly notified. In its advisory opinion, PERSCOM is asking the Board to ignore regulatory guidance that is designed to protect both the Army and the individual service member.

21. Army Regulation 350-100 (Officer Active Duty Service Obligations) establishes policies and procedures for the receipt, computation, and notice of active duty service obligations (ADSOs) for all active duty Army officers. Paragraph 2-7 contains guidance on ADSO incurred as a result of military schooling. It states, in pertinent part, that members attending all Aircraft Qualification Courses (fixed and rotary wing) incur a 3 year ADSO.
22. Paragraph 3-5 contains guidance on the notification of officers who incur an ADSO. It states, in pertinent part, that officers on active duty will be informed of ADSOs incurred under the provisions of this regulation as follows: the length of service obligation incurred will be included in the course regulations, course description in DA Pam 351-4, and other DA publications that describe a program and that official orders that direct any event that results in an ADSO will contain the following statement-“Additional Active Duty Service Obligation of (give length) is incurred under provisions of (regulation)."

CONCLUSIONS:

1. The Board noted the applicant’s contentions and finds there is sufficient merit to warrant the requested relief.

2. The Board does not agree with the assertion of the applicant and his counsel that the UC-35 AQC he attended did not qualify as an AQC for the purpose of incurring a 3 year ADSO under the provisions of Army Regulation 350-100. This course was obviously an AQC and the applicant should have incurred a 3 year ADSO based on his attendance at and completion of the course.

3. However, by regulation, it is also required that official orders that direct any event that results in an ADSO will contain the statement “Additional Active Duty Service Obligation of (give length) is incurred under provisions of (regulation)."

4. The evidence of record clearly establishes that the applicant was not properly informed that he would incur an additional ADSO in the orders that assigned him to the UC-35 AQC in question, as is required by the applicable regulation. In addition, the record shows that he declined a promotion to CW3 and integration into the RA in order to request REFRAD prior to being informed that he had incurred an additional ADSO based on his attendance at this course.

5. While the Board fully understands the position taken by PERSCOM officials in their advisory opinion based on training expense and the needs of the Army; it finds the Department’s failure to properly inform the applicant of the additional ADSO he would incur as a result of his attendance at the UC-35 AQC is the primary and overriding factor in this case.

6. In the opinion of the Board, it is unreasonable to believe that the applicant was properly informed or aware of the additional ADSO he would incur based on his attendance at the UC-35 AQC, as evidenced by his subsequent actions to decline his promotion, integration into the RA, and to request REFRAD upon completion of his PCS ADSO.

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7. In addition, it is also very clear that the statement informing the applicant of the additional ADSO was not included in his travel orders, as required by regulation. Therefore, the Board concludes that it would be appropriate, in the interest of justice and equity, to remove the 3 year ADSO the applicant incurred as a result of his attendance at the UC-35 AQC in 1999.

8. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by removing the 3 year ADSO obligation the applicant incurred as a result of his attendance and completion of the UC-35 AQC from 12 July to 6 August 1999 and that he be allowed to be REFRAD accordingly.

BOARD VOTE:

__RJW _ __BJE __ __JPI___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Raymond J. Wagner__

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INDEX

CASE ID	AR2001055375
SUFFIX
RECON
DATE BOARDED	2001/08/02
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 947	137.0100
2.
3.
4.
5.
6.