MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
                                   
        

         BOARD DATE: 25 October 2001
         DOCKET NUMBER: AR2001055390


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

Mr. Carl W. S. Chun		Director
Mr. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Ronald E. Blakely		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

APPLICANT REQUESTS: Reconsideration of his earlier appeal to correct his military records by expunging the Academic Evaluation Report (AER) for the period from 6 April 1996 to 12 March 1997 and by showing that his assignment to the U.S. Naval Test Pilot School (USNTPS) was nonrated time.

APPLICANT STATES: In effect, he defers to his counsel.

COUNSEL CONTENDS: In effect, that the applicant was not academically failing the USNTPS course and should have been allowed to voluntarily withdraw. Had he been allowed to withdraw, the period would have been nonrated time. Counsel cites Army Regulation 623-1, paragraph 1-6(a)(1)(a) to substantiate this argument and states that the proponent of this regulation has confirmed that the intent of this paragraph was “to assure that highly qualified personnel would not be adversely effected by taking extraordinarily difficult courses.” Counsel contends that the Navy has no need for such a voluntary withdrawal policy because it considers the time to be “not observed” anyway. Counsel cites Bureau of Naval Personnel Instruction (BUPERSINST) 1610.10 (Navy Performance Evaluation and Counseling Manual), to substantiate this argument.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR200038972) on 20 April 2000.

The counsel’s contentions are new argument that requires Board consideration.

Paragraph 16 (Comments) of the contested AER reads:

Captain [applicant] was enrolled in a rigorous course of instruction of Class 111 at the U.S. Naval Test Pilot School, a very select, screened group of U.S. and foreign military and civilian students. He has maintained an extremely high level of enthusiasm and effort towards completing the syllabus. Additionally, he has displayed a positive attitude throughout the year and during a three month probationary period. Unfortunately, his test flying skills, airsense, and adaptability, and ability to analyze and report results were not meeting the standards required of a future test pilot nor was his progression sufficient to insure he would be ready to safely execute a critical flight test program at graduation. This was the direct result

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of low total pilot time and extremely low pilot-in-command time prior to reporting for test pilot training, neither of which were factors he could control.

Specifically, the dismissal criteria were:

a. Receipt of an unsatisfactory grade while on probation.
b. Failure to achieve the improved performance prescribed during a period of probation.
c. Failure to achieve the report grades required for graduation.

Captain [applicant] remains a highly professional and competent Army Officer who has a bright future in other aviation specialties within the Army.

Army Regulation 623-1, Academic Evaluation Reports, provides at subparagraph 1-5(1)(a) that Active Army students in good academic standing who voluntarily withdraw from an elective course of instruction short of completion will have the period declared nonrated time. Subparagraph 1-5(1)(f) states that students in good academic standing, who are eliminated from Initial Entry Rotary Wing training for flight deficiencies only, will have the time declared nonrated.

(BUPERSINST) 1610.10, Annex G provides guidance for the completion of “Wholly Not Observed (NOB) reports.” Paragraph G-3 states that not observed reports “are to be used when graded reports are not appropriate and may be submitted for…academic duty under instruction of any length…Observed reports are desired if any fair and meaningful evaluation or recommendation can be made.”

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation,

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manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant was not in good academic standing. He was on academic probation. He did not voluntarily disenroll. He has neither demonstrated that there was any requirement to offer him an opportunity to voluntarily disenroll, nor shown that the outcome would have been any different if he had.

2. The applicant was not enrolled in Initial Entry Rotary Wing training, neither was he eliminated from USNTPS for flight deficiencies only. Notwithstanding counsel’s contention, the cited provisions of Army Regulation 623-1 are irrelevant.

3. The Navy’s evaluation policy does not apply in this case. If the Army wanted to follow the Navy’s practice it would not require that the USNTPS complete an AER on Army students.

4. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__ rjw __ __ kan__ __ reb___ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records



INDEX

CASE ID	AR2001055390
SUFFIX
RECON
DATE BOARDED	20011025
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.