PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 11 JUNE 2002
         DOCKET NUMBER: AR2001058388


         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Roger W. Able		Member
Mr. Harry B. Oberg		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 that he be reinstated to full time Active Guard/Reserve (AGR) duty in the Connecticut Army National Guard (CTARNG) with the restoration of all rights, privileges, and property, to include time credited for pay and longevity purposes and accrued leave, from 31 August 1997 to the date that he is returned to full time AGR duty; that all references to the administrative action to separate him from full time AGR duty and all references to his separation from full time AGR duty on 31 August 1997, be expunged from his official military personnel file (OMPF); that he be reimbursed for all medical expenses to include medical insurance premiums paid during the period from 31 August 1997 to the date that he is returned to full time AGR duty; that he be promoted to Chief Warrant Four (CW4) with a date of rank of 10 August 1997; that he be considered for further aviation service by a Flying Evaluation Board (FEB) composed of members outside the state of Connecticut to hear the matter of his suitability for continued military service; and that the adverse officer evaluation report (OER) for the period 30 September 1996 through 31 August 1997 be expunged from his OMPF.

3. The applicant submitted a 17 page affidavit (exhibit 1 of the application). He states that he served as an Army aviator since 1978 and was a full time pilot in the CTARNG between 1991 and 1997. He has consistently received outstanding performance ratings and has received two Army Commendation Medals. He attained the rank of Chief Warrant Three (CW3).

•         He states that in the fall of 1991 he heard disturbing reports of misconduct by senior officers in the CTARNG, to include the Army Aviation Support Facility (AASF) supervisor, the Aviation Classification Repair Activity Depot (AVCRAD) commander, and an AVCRAD colonel. He states that he had conversations during the summer and fall of 1993 of misconduct by high members of the CTARNG who framed the father of a fellow officer, a captain, to take the blame for a scandal. He states that his rater, CW5 “N,” was present and participated in a number of those conversations. He states that in the summer of 1995 a contractor informed him of improprieties by the commander of the AVCRAD in a hiring practice.

•         He states that he was diagnosed with symptoms of attention deficit disorder (ADD) in 1995 and a medication, Ritalin, was prescribed. He was informed by medical personnel that taking Ritalin would not be unsafe when flying. To be sure, he contacted a Federal Aviation Agency aviation medical examiner, a former military flight surgeon (FS), who told him that the use of the medication should improve his performance as an aviator. He took the medication and continued his flying duties. In October 1996 his prescription was modified to include Prozac, and during the time he used those medications, he experienced no adverse effects, and his overall performance improved.

•         He states that in the spring of 1996 he developed a minor head cold, which he treated with over the counter medications. It was not serious enough to inform the flight surgeon, and it was the custom and practice in his unit to take only serious problems to the flight surgeon in order to not be needlessly grounded, something that the flight surgeon, Colonel “E,” did willingly for even trivial ailments. This practice was encouraged by Colonel “B,” the AVCRAD commander.

•         He states that prior to the summer of 1996 he would simply listen to reports of misconduct; however, the persistence of the reports concerned him and he began discretely discussing those reports.

•         In 1997 he informed his commanding officer, CW5 “N,” who was also his rater, of the medication that he was taking, and they agreed that Col “R,” the Director of Aviation, would need to be informed. He informed that officer and was told that the flight surgeon, Colonel “E,” would have to review the matter, but that he would be grounded in the meantime.

•         Colonel “E” informed him that he could not make a decision until he underwent a psychiatric examination. During the period 12-14 March 1997 he underwent a psychiatric examination by Colonel “Ry” and his staff at Womack Army Medical Center at Fort Bragg, North Carolina. Colonel “Ry” informed him that he did indeed have a mild case of ADD, that it was not medically disqualifying as an aviator, and that it would be possible for him to resume flying duties if he chose to discontinue taking his medications. He informed CW5 “N” and Colonel “R,” the Director of Aviation, of that determination.

•         He was still grounded. He performed other duties, to include installing commercial software, while his status was being resolved. In June 1997 he was involved in an altercation with Colonel “R” about the installation of a software application, resulting in his reassignment [out of the aviation community] to the 169^th Leadership Regiment in Niantic, Connecticut.

•         In the middle of July 1997 he met with Colonel “B” to discuss the allegations about him (Colonel “B”) and others that had been reported to him (the applicant). The next day his commanding officer, CW5 “N,” informed him that senior commanders discussed his continued position within the CTARNG, and on 24 July 1997 he was informed that he no longer had a full time position within the CTARNG. On 6 August 1997 he received a memorandum recommending his involuntary separation for cause.

•         He appealed his separation and requested a hearing before a Flying Evaluation Board (FEB). He stated that his commanding officer, CW5 “N,” made several errors in recommending him for involuntary separation, to include misquoting the aeromedical consultation reply provided by Colonel “Ry,” incorrectly stating that unsatisfactory aeromedical adaptability as a reason that he did not meet the medical fitness standards for flight duty, ignoring the requirement to convene an FEB, and failing to offer any facts to show inappropriate professional conduct on his part.

•         The applicant states that Colonel “R” was aware that an FEB would exonerate his actions, and in effect that a plan was developed to discredit him by dismissing him before he would have time to formally present allegations. He cites instances to show that Colonel “R” was hot-tempered and vindictive.

•         The applicant states that several members of the CTARNG retaliated against him because of his informal investigation into their potential fraud and criminal misconduct; that they justified their position by selectively enforcing a regulation that was knowingly and customarily ignored, even by the individuals enforcing it; and that the CTARNG violated several regulations in order to involuntarily separate him, including a right to a hearing before an FEB.

•         He states that he was involuntarily separated on 31 August 1997 and his AGR status terminated.

4. Counsel provides much of the same information as the applicant in his 16 page brief to this Board. Counsel states that the applicant’s removal from flight status and AGR separation was ordered without an FEB in violation of Army Regulation 600-105. He states that although the applicant was diagnosed with a mild case of ADD in 1995, his condition did not affect his duty performance as evidenced by his evaluation reports and letters and memorandums of appreciation. He states that the applicant’s aviation service was ended and his flight pay terminated without benefit of an FEB, and that the applicant was both professionally and financially affected.

•         Counsel states that the action against the applicant came because he began to question CTARNG personnel about certain allegations of misconduct by senior officers, as indicated in the applicant’s affidavit.

•         He states that the applicant was due to be promoted to CW4 on 10 August 1997; however, that promotion did not occur for reasons not made known to him.

•         Counsel recounts the practice in the applicant’s unit to take only serious medical problems to the flight surgeon. He states that the reasons given for the applicant’s removal from flight status and AGR separation included unsatisfactory aeromedical adaptability (AA), based on his failure to disclose the use of prescription medications. Counsel states that applicant was singled out, and was informed by both his commanding officers to act in the manner which was ultimately used as a basis for the unsatisfactory AA evaluation.

•         He states that the applicant used Ritalin to treat his ADD, and that the medical clinic which prescribed that medication was aware of his military and civilian flight status. Counsel states that the use by the CTARNG of the ADD diagnosis to effect the applicant’s removal from flight status and AGR separation was an administrative artifice, rather than a legitimate medical basis. Ritalin did not affect his performance and his ADD was so mild as to not be inherently disqualifying (as attested to by Colonel “Ry” at Fort Bragg).

•         Counsel states that when the applicant met with the flight surgeon, he was informed that he could not make a decision until the applicant underwent a complete psychiatric examination; however, the flight surgeon misled him because the documentation forwarded to Colonel “Ry” contained a recommendation for medical disqualification. Colonel “Ry” stated that his case of ADD was not medically disqualifying as an aviator. Counsel states that four memorandums containing misinterpretations of his (Colonel “Ry”) medical findings were used as the basis for the applicant’s removal from flight status and AGR status.

•         Counsel states the recommendations for applicant’s removal listed unsatisfactory AA as a basis for their recommendations, in which case an FEB is required when an aviator fails to remain professionally qualified or when undisclosed medical history is cited as a basis for unsatisfactory AA. The applicant requested an FEB, but the CTARNG officers ignored the regulation requiring an FEB.

•         Counsel states that the CTARNG reviewing officers ignored the legal requirement for a pre-termination hearing and took their desired action without affording the applicant due process. Counsel cites provisions of court cases to show that the applicant should have had a pre-termination hearing. He states that the denial of such a hearing is a denial of constitutionally protected due process rights. Consequently, the applicant does not have a new MOS (military occupational specialty) or a new assignment. The reasons for his discharge were made known to the FAA, affecting his civilian pilot status and his ability to obtain employment in the aviation field.

•         Counsel states that the applicant’s failure to be promoted on 10 August 1997 while he was still in an AGR status, and without affording the applicant his due process rights was illegal, unfair, and erroneous.

•         Counsel states that the applicant’s OER for the period 30 September 1996 through 31 August 1997 is unfair and unjust – that the rating officers were directly involved in the decision to improperly terminate the applicant from flight status and AGR status without an FEB and should have been disqualified as rating officials. Even so, counsel states that the OER was not referred to the applicant until after 4 November 1998, over a year after the end of the reporting period. Counsel states that the comments made on the OER are inaccurate, unfair, and unjust, and the OER should be expunged from the applicant’s OMPF.

•         Counsel states that the actions taken by the CTARNG were erroneous and created an inaccurate military record on the applicant, and that without correction of his record he will continue to suffer the loss of his profession. The actions taken violated Army regulations and federal law.
5. The applicant's complete military records are not available. The records presented are those provided by the applicant and counsel and are identified as exhibits in the applicant’s request, e.g., Exhibit 1, Applicant’s affidavit; Exhibit 2, Relevant chronology, etc.

6. At exhibits 3 and 4 to the applicant’s request are copies of past evaluation reports, and letters and memorandums which reflect the applicant’s performance of duty. The applicant’s OER for the period 1 October 1995 through 30 September 1996 (the OER prior to the adverse OER) shows that he was an aviation safety officer with the Operational Support Aircraft Flight Detachment in Hartford. His rater was the same CW5 “N” and his senior rater the same Colonel “R” mentioned above. His rater gave him all 1’s in the 14 attributes in Part IVa (Professional Competence) of that report, stated that he always exceeded requirements, and should be promoted ahead of his contemporaries. His senior rater stated that he performed his duties in an outstanding manner and performed all missions in a highly professional and safe manner. He placed him in the top block in the potential evaluation portion of that report.

7. At exhibit 5 is a copy of a medical record in which the flight surgeon, Colonel “E” stated that the applicant was interviewed on 13 January 1997 in connection with his use of two medications. The contents of the interview were contained in a summary addressed to Colonel “Ry.” He stated that the state aviation officer was contacted with a recommendation for medical disqualification pending consultation with Colonel “Ry.” The flight surgeon indicated that he informed the applicant that he continue to perform duties that did not require flying pending the outcome of the consultation.

8. That record shows that Colonel “Ry” stated that his evaluation disclosed a very mild ADD, so inherently mild as to not be inherently disqualifying, and based on that alone, the applicant could remain on flight status and would not need a waiver. He stated, however, that his use of Ritalin and Prozac or like medications was unequivocally prohibited. He stated that the applicant was sane and responsible for his actions, on or off such medications, and like any aviator, was expected to report the use of any medications.

9. Exhibit 6 is information extracted from directives pertaining to flight evaluation board procedures and medical fitness standards.

10. Exhibit 7 is information extracted from Army Regulation 600-105 (Aviation Service of Rated Army Officers), with the applicant’s comments in italics after selected paragraphs.

11. Exhibit 8 is an extract from Army Regulation 40-501 (Standards of Medical Fitness) pertaining to Aeromedical Adaptability (AA).

12. On 7 April 1997 in a letter to Colonel “E,” the chief flight surgeon of the CTARNG, regarding the applicant’s consultation (Exhibit 9), Colonel “Ry,” the aviation psychiatry consultant, stated that the applicant brought his health records, which disclosed hypercholesterolemia but no disqualifying conditions. Flying duty medical examinations (FDMEs) in 1995 and 1996 in particular showed him denying taking any medications, and by signature acknowledging that he read Army Regulation 40-8 and complied with it. Colonel “R” summarized the applicant’s aviation history and his military history, stating that the applicant believed that he was well regarded by his unit prior to the present revelation, and that Colonel “E” confirmed this. Colonel “Ry” indicated that the applicant commenced on Ritalin in August 1995 and in October 1996 began simultaneously on Prozac, from an outside clinic, and he again, after deliberation, chose not to reveal his use of Prozac. Yet, he continued his flying duties and his situation might have continued indefinitely, had he not developed pneumonia in late 1996, which eventually led to the knowledge of his use of unauthorized medications. He was grounded medically and administratively on 17 January 1997. Subsequent to a mental status evaluation, Colonel “Ry” stated that the applicant did have a mild attention deficit disorder, and that his exceptional IQ had compensated sufficiently to mask the problem. He stated that the applicant was so little troubled by his ADD that it was not per se disqualifying for flight duty; however, the use of either or both medications was absolutely disqualifying. He stated that the applicant had unsatisfactory AA, but had flown safely. He stated that depending on the penalties assessed by the CTARNG or the National Guard Bureau, the applicant might have a choice to continue flying and cease the medication, or vice versa. He diagnosed the applicant’s condition as Attention Deficit Disorder, mild 314; and hypercholesterolemia.

13. On 10 July 1997 the Army Aeromedical Center (USAAMC) at Fort Rucker, Alabama, in a memorandum to the National Guard Bureau recommended that the applicant be medically disqualified for further aviation service (Exhibit 10). The memorandum indicated that the applicant did not meet the medical fitness standards for class 2 flying duties under the provisions of Army Regulation 40-501, paragraphs 4-23f and 4-29b(1) due to adult attention deficit disorder and unsatisfactory AA. The applicant was given the unsatisfactory AA due to his concealment of taking disqualifying medications which he obtained from a private physician. It went on to say that the medical staff of the center reviewed all the clinical records submitted and concluded that his condition was not compatible with the operational requirement of Army aviation. His date of medical incapacitation was 7 April 1997.

14. On 21 July 1997 the National Guard Bureau approved the recommendation, and stated that his medical disqualification was effective on 7 April 1997. On 24 July 1997, Colonel “R,” the Director of Aviation Operations of the CTARNG, notified the applicant of his medical disqualification with entitlement to Aviation Career Incentive Pay (ACIP) until 8 April 1998 (Exhibits 11 and 12).

15. On 6 August 1997 the applicant’s commanding officer notified the applicant that he was recommending that the applicant be involuntarily separated for cause in accordance with National Guard Bureau Regulation 600-5, paragraphs 6-5c(1) and (3), due to inappropriate professional conduct and loss of professional qualifications required for performance of his assigned duties (Exhibit 13).

16. On 21 August 1997 the applicant requested reconsideration of the recommendation and requested that he be afforded his right to an FEB in accordance with the provisions of Army Regulation 600-105 (Exhibit 14). He also stated that he was asserting his right to procedural due process under the Fifth Amendment to the Constitution, and requested that any action terminating his AGR status not be issued prior to a hearing. He rebutted his commander’s conclusions that he should be separated for cause based upon inappropriate professional conduct and loss of professional qualifications. He stated that there were no regulations which explicitly prohibited an aviator’s use of Prozac or Ritalin, despite the remarks by Colonel “Ry,” but to the extent that use of either was disqualifying he agreed to discontinue use of such medications. He stated that he did fail to report the use of those medications, but such failure did not mandate a permanent disqualification, and that under the provisions of Army Regulation 600-105 he could seek requalification. He stated, as he did in his application, that the custom in the aviation community in Connecticut dictated that he not report the use of those medications to the flight surgeon, and that pilots were ordered not to see the flight surgeon every time they took a medication, but to follow their own common sense in deciding when to fly. He followed his common sense and sought counsel from the former state flight surgeon in advance of using those medications, and was told that the use would not impair his ability to fly. He stated that the standards contained in Army Regulation 600-105 were not applied evenly among aviators in Connecticut, and that there were other aviators who had concealed their use of expressly prohibited agents. He stated that his past performance rebutted the recommendation that he be separated for inappropriate professional conduct, and requested facts to support that allegation.

17. Exhibits 15 and 16 are statements from two retired warrant officers who verified the applicant’s account of the informal policy of taking over the counter and prescription medications, and seeing private physicians, without always disclosing the information to the flight surgeon. They both indicated that they would sometimes take those medications while flying, that they were expected to use their professional judgment in this matter, and that the policy was common practice for several years prior to the applicant’s incident. They both stated that they were aware their superiors, including Colonel “B,” knew of this practice and even encouraged it, if it meant that the mission could be accomplished safely.

18. Exhibit 17 is a copy of the OER for the period 30 September 1996 through 31 August 1997. The applicant’s rater gave the applicant three 1’s, nine 2’s, and two 3’s, in the 14 attributes in Part IVa (Professional Competence) of that report, stated that his judgment required improvement, that he lacked the ability to discern right from wrong, and that he consciously violated Army regulations. He stated that the applicant often failed requirements and should not be promoted. His rater did not provide a narrative comment on the applicant’s performance, but instead related the information concerning his disqualification from flight status. His senior rater echoed that information, and placed the applicant in the fifth from the top block in the potential evaluation portion of the report. The report was referred to the applicant on 4 November 1998.

19. In the processing of this case an advisory opinion was obtained from the National Guard Bureau. That agency stated that the applicant violated the provisions of Army Regulation 40-501 by taking prescription medication without reporting it to members of his chain of command; and that a qualified medical board reviewed his records and found him to be not medically qualified to continue on flying status. The agency stated that the applicant was not eligible for an FEB because he was not on flight status because of his medical disqualification. It stated that the applicant’s request should be denied due to lack of supporting evidence and because there was no factual basis to grant his request.

20. On behalf of the applicant, counsel submitted a rebuttal to the advisory opinion in which he stated:

•         Flight status is synonymous with aviation service and an aeromedical disqualification does not automatically result in medical termination from aviation service. The Commander, USAAMC, determines aeromedical disqualification through a separate process and medical termination from aviation service begins on the 181^st day following the date of medical incapacitation. The applicant’s medical incapacitation began on 7 April 1997 and the applicant submitted a request for an FEB on 21 August 1997, well within the 181-day window; consequently, the applicant did have flight status and was entitled to an FEB in accordance with the regulation and as per the applicant’s request.
•         That Col “Ry,” Col “E,” and Col “B” all misinterpreted and misapplied the provisions of Army Regulation 40-501, when stating that the applicant was medically disqualified to continue his flying status, in that regulation pertained to deliberate or willful concealment of significant and/or disqualifying medical conditions on medical history forms or during FS interview. That regulation did not pertain to medications obtained from a physician. The applicant’s condition was not medically disqualifying. The applicant’s failure to report his condition did not fall under the regulation, since in the scope of his duties, it was not medically disqualifying and he had no obligation to report it.
•         The above mentioned colonels also made an erroneous conclusion that the applicant had an unsatisfactory AA. Army Regulation 40-501 does not prohibit taking medications prescribed by a physician, and Aeromedical Policy Letters (APLs), which carry the weight of regulations, state that a finding of unsatisfactory AA must not occur prior to an FEB.
•         On 25 May 2001, the Senior Flight Surgeon, Eastern Army Aviation Training Site, stated that Aeromedical Policy Letters state that if an FEB was sufficient to decide disposition of an aircrew member, an unsatisfactory AA must not be used. That officer also stated that at the request of the applicant and the Aeromedical Consultants Advisory Panel (ACAP), he re-represented the applicant’s case to the panel on 24 May 2001, and the final results of the appeal were pending. He stated that the applicant’s case would have been more completely served by an FEB to validate an unsatisfactory AA.
•         The Director of the U.S. Army Aeromedical Activity stated on 1 June 2001 that the applicant should have gone before an FEB prior to his presentation at the ACAP. He stated that the first presentation of the applicant’s case was in 1997 and the second time was approximately one week ago, and in both instances suspension of his flight status was upheld under an unsatisfactory AA. That officer stated that an unsatisfactory AA should not be used when there was sufficient cause for the case to be considered under an FEB. That officer also stated that the best interests of the aviator or the aviation community was not served when the FEB was not utilized when it was clearly indicated by the conditions set forth in the regulation.
•         Based on the above reasoning and the interpretation of the regulation by the Army’s own expert medical personnel, a conclusion of unsatisfactory AA without benefit of an FEB, required by regulation, was unfounded. Consequently, the qualified medical board referred to in the advisory opinion had no valid basis to find the applicant not medically qualified to continue his flying status. The applicant’s commander ignored his responsibility to convene an FEB when requested by the applicant and also ignored his responsibility to convene an FEB when the applicant was alleged to have failed to remain professionally qualified. The state flight surgeon, Colonel “E” also ignored the requirement to convene an FEB. The applicant’s commander, CW5 “N” made an unsubstantiated claim that the applicant engaged in inappropriate professional conduct, and used that claim as a basis for separating the applicant from the service. The applicant rebutted the claim, but CW5 “N” ignored the applicant’s request and the claim remains unsubstantiated.
•         The applicant was not reclassified after he was terminated from aviation service, and after four years, is still not reclassified; consequently, he could not be promoted. The applicant is entitled to immediate reclassification, promotion, assignment of retroactive date of rank, and payment of all past due pay and allowances.
•         The applicant should have been referred to a Medical Evaluation Board (MEB) because of his adult attention deficit disorder (AADD). If his commander believed that his condition was such that it affected his performance of duty, then he should have been referred to a medical treatment facility for medical evaluation. This was not done. Consequently, neither the government’s nor the applicant’s rights and interests were properly protected.
•         There was no valid authority to separate the applicant from the service. The reliance on National Guard Bureau Regulation 600-5, inappropriate professional and personal conduct, is unsubstantiated and inappropriate. Furthermore, any separation based on a medical condition falls under the purview of a Physical Evaluation Board (PEB), and the applicant’s commander failed to refer the applicant to a PEB.
•         The process by which the applicant’s flight status was terminated was flawed throughout and the opinion by the ACAP should be overturned and the applicant’s flight status reinstated, pending an FEB. Since he was not provided an FEB, his rights to due process were violated. The decisions of the ACAP were not official medical diagnoses, but informal opinions that were not medically binding.

21. In a 31 January 2002 memorandum to this agency, the Commander of the Army Aeromedical Center at Fort Rucker stated that the applicant was considered before the June 2001 ACAP in consideration of reversal of his reinstatement to aviation duties; and that the suspension, granted 7 April 1999, was given for failure to disclose a medical condition and taking class 4 medications. He stated that class 4 medications were specifically prohibited from being taken while on flight status and the failure to disclose and medication use was acknowledged by the aviator to be contrary to policy and regulation at the time of their occurrence. He stated that the AA rating of unsatisfactory was upheld by the ACAP and he recommended continuation of the suspension to the waiver authority. He also enclosed copies of the APL for class 4 medications and the AA rating. Both the memorandum and the two APLs were forwarded to the applicant’s counsel for information and comment.

22. On 1 March 2002 the applicant responded, through his attorney, stating the APL concerning AA, which quotes from AR 40-501, directs an FEB when determining a finding of unsatisfactory AA, since that is a consensus of opinion and not a medical diagnosis, and as such those opinions should be aired in a forum where the aviator has an opportunity to comment on and rebut those opinions. Circumventing the FEB denies the aviator his right to due process, and since he was denied an FEB, his due process rights were violated. He went on to say that the APL directs the use of AR 600-105 to determine the aviator’s aeronautical rating and military status, and also directs an FEB be convened under his circumstances. Specifically, the regulation directs an FEB when an aviator makes a written request, which he did. The CTARNG ignored his lawful request for an FEB, disregarding Army regulations.

23. Army Regulation 40-501, chapter 4, lists medical conditions and physical defects which are causes for rejection in selection, training, and retention of Army aviators, and states in pertinent part that a failure to meet medical standards remains disqualifying for flying duties until reviewed by the Commander of the Army Aeromedical Center (USAAMC). That commander may recommend medical termination from aviation service. The Commander, USAAMC, issues Aeromedical Policy Letters (APLs) and Aeromedical Technical Bulletins (ATBs) that provide detailed recommendations for specific, common disqualifications.

24. Paragraph 4-23 of that regulation pertains to mental disorders and states that the causes of medical unfitness for flying duty includes (paragraph 4-23f), a history of personality or behavior disorder. Personality traits insufficient to meet Diagnostic and Statistical Manual of Mental Disorders, DSM-III-R (now DSM IV) criteria for personality disorder diagnosis may be cause for an unsatisfactory AA rating.

25. DSM IV (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition) provides a classification of mental disorders, and provides a numerical code to facilitate medical record keeping. Attention deficit/hyperactivity is a disorder listed and described in DSM IV. Attention deficit/hyperactive disorder inattentive type, code 314, is a subtype of this disorder.

26. Paragraph 4-29a, Army Regulation 40-501, states that an unsatisfactory AA due to sociobehavioral factors that are considered unsuitable for or unadaptable to Army aeronautics is a cause of medical unfitness for flying duty. That paragraph goes on to state: “The unsatisfactory AA may be a manifestation of underlying psychiatric disease or may be accompanied by nonmedical disqualifications (See AR 600-105). The unsatisfactory AA is not a diagnosis, but is a determination by the FS (flight surgeon) and aviation commander or supervisor of suitability or adaptability. An unsatisfactory AA may be revealed by interview, records review, command referral, security investigations, or other documented sources.”

“b. Until reviewed by the Commander, USAAMC, an unsatisfactory AA may exist if any of the conditions listed below are present. Trained aircrew with an unsatisfactory AA should also be referred to the aviation unit commander for administrative evaluation of nonmedical disqualifications and determination of fitness to retain the aircrew member’s aeronautical rating or status (See AR 600-105). Psychological and psychiatric consultation will be obtained as required by the FS or Commander, USAAMC. The aviation commander and FS will forward their evaluations and recommendations to the Commander, USAAMC to make a final recommendation of medical fitness for flying duties. Commander, USAAMC will coordinate with the Chief, Army Aviation Branch, and aeromedical waiver authorities as required.”

“(1) Deliberate or willful concealment of significant and/or disqualifying medical conditions on medical history forms or during FS interview.” …

“(3) Clearly noticeable personality traits such as immaturity, self-isolation, difficulty with authority, poor interpersonal relationships, impaired impulse control, or other traits, which may interfere with group functioning as a team member in an operational aviation setting, even though there are insufficient criteria for a personality disorder diagnosis.” …

“c. Until reviewed by Commander, USAAMC, an unsatisfactory AA may be given for lower levels (symptoms and signs) than those mentioned in b above, if, in the opinion of the FS and aviation commander or civilian supervisor, mental or physical factors might be exacerbated under the stresses of Army aviation or the person might not be able to carry out his or her duties in a mature and responsible fashion. A person may be disqualified for any of a combination of factors listed in b above and/or due to personal habits or appearance indicative of attitudes of carelessness, poor motivation, or other characteristics which may be unsafe or undesirable in the aviation environment.”

27. Chapter 6 pertains to aeromedical administration and provides administrative policies for completing the Army FDME (Flying Duty Medical Examination), and general policies for the review and disposition of aeromedical disqualified aviation training program applicants, aircrew, and ATCs (air traffic controllers). The FDME is a periodic physical examination performed for occupational and preventive medicine purposes to promote and preserve the fitness, deployability, and safety of aviation personnel and resources. The FDME is a screening examination used as a starting point for the careful evaluation and treatment of aircrew member health problems. The FDME and supporting documents provide the aviation commander and Commander, USAAMC with information to make a final determination of medical fitness for flying duties.

28. The ACAP is a panel of rated aviators designated by Commander, U.S. Army Aviation Center with multiple medical specialty credentials designated by the Commander, USAAMC.

29. Chapter 6 continues by saying that aeromedical disqualification is a medical condition that is unfitting for aviation duties. It states that AR 600-105 contains definitions and procedures for temporary medical suspension, medical termination of aviation service, aeromedical waivers, and return to aviation service after termination of aviation service. AR 600-105 defines procedures for non-medical disqualifications for aviation service, FEBs, and in-flight aeromedical evaluations. Temporary aeromedical disqualification is a failure to meet a standard of medical fitness for flying duties due to a minor, self-limited condition that is likely to resolve and result in re-qualification within 180 days. A temporary aeromedical disqualification will become a permanent aeromedical disqualification if the disqualification persists for more than 180 days.

30. The Commander, USAAMC establishes the U.S. Army Aeromedical Activity (USAAMA) and makes a final recommendation of medical fitness for flying duties and organizes and manages the ACAP. The ACAP provides a consensus of opinion for the Commander, USAAMC and The Surgeon General Aviation Medicine Consultant. The Commander, USAAMC is authorized to issue APLs and ATBs that are regulatory in nature. The FS will make the initial determination of medical unfitness due to a failure to meet a medical standard for aircrew duties. The final determination of medical fitness for flying duties is made by the Commander, USAAMC. Although MEB and PEB documents are a valuable source of information, the final recommendation of medical fitness for flying duty is made independent of the recommendations of these boards. The commander may review the proceedings of FEBs. The FS will determine the date of medical incapacitation. The date of medical incapacitation is the date the aeromedical disqualification is diagnosed by history, physical examination, or testing.

31. Aircrew members will report to a FS a history of symptoms indicating a change in health, illness requiring the use of medications; visit to a health care provider for evaluation and/or medical-dental care, restriction to quarters, or hospitalization; drug or alcohol use that results in legal problems, psychosocial dysfunction, medical or psychological incapacitation, or history of evaluation and/or treatment for drug/alcohol misuse, abuse, or dependence. The immediate aviation commander will request an aeromedical consultation with a local FS when an aircrew member develops a change in health. The local FS will make a preliminary determination of medical fitness for flying duties and make a recommendation with appropriate attachments to the Commander, USAAMC. In the case of a permanent aeromedical disqualification, the Commander, USAAMC makes the final recommendation of medical fitness for flying duties to the aviation service waiver authority, who makes the final administrative disposition for medical termination from aviation service (permanent medical suspension), or continuation of aviation service with an administrative aeromedical waiver.

32. Army Regulation 600-105 sets policies, responsibilities, and procedures for awarding Army aeronautical ratings; qualifying, disqualifying, and requalifying officers for aviation service, and reviewing flight and personnel records of Army aviators to determine their qualifications to continue in aviation service. It also describes conditions for disqualification (or termination) and requalification for aviation service, contains additional procedures for convening and conducting an FEB, and contains procedures for an aeromedical consultation and in-flight evaluation.

33. Paragraph 4-1 of that regulation states that an aeromedical disqualification exists when an officer does not meet the medical fitness standards for flying duties (AR 40-501 and Aeromedical Policy Letter series). Aeromedical disqualification requires temporary medical suspension, medical termination from aviation service, or qualification with an aeromedical waiver. Paragraph 4-2 concerns procedures and requires the officer to report a history of certain conditions as depicted in Army Regulation 40-501 (chapter 6, above). Paragraph 4-4 provides the procedures for medical termination from aviation service. Those procedures in Army Regulation 600-105 imitate those contained in Army Regulation 40-501, described above, and go on to say that the Army Aeromedical Center will review the medical report and make the final recommendation of medical fitness for flight duty. The Army Aeromedical Center will make recommendations to [in this case] the National Guard Bureau, and recommend the date of aeromedical incapacitation and the final aeromedical disposition – qualification without a waiver, qualification with an aeromedical waiver, or medical termination from aviation service. The National Guard Bureau will establish the date of medical termination from aviation service and publish an order disqualifying the officer. The appropriate personnel career division will reclassify or rebranch the officer from aviation service if warranted.

34. Paragraph 4-5 states that a flight surgeon may recommend to the commander, Army Aeromedical Center, by an aeromedical summary that an aviator who has been medically terminated from aviation service be requalified with or without an aeromedical waiver. If the Aeromedical Center concurs, a recommendation requesting requalification for aviation service will be forwarded to (in this case) the National Guard Bureau.

35. Paragraph 5-1 states that a nonmedical disqualification exists when an officer does not meet one or more of the standards for flying duties as depicted in paragraph 6-1. When an officer is no longer professionally qualified for aviation service, he is disqualified from further aviation service. Paragraph 5-6 states that officers may request requalification and restoration of aviation service when the original reason(s) for the disqualification no longer exists. In the applicant’s case, the Chief, National Guard Bureau, may approve requalfication and restoration.

36. Paragraph 6 pertains to FEBs and paragraph 6-1a states that an FEB should be convened if an officer fails to remain professionally qualified, has marginal potential for continued aviation service, or is currently nonmedically disqualified for aviation service and meets the provisions for requalification. Paragraph 6-1c states that an FEB will be convened for certain reasons, to include lack of proficiency, failure to maintain medical certification (through timely medical examinations), flagrant violation of flying regulations (lack of judgment or proficiency that renders the officer unfit or unqualified to perform flying duties), undesirable habits or traits of character, unsatisfactory duty performance, insufficient motivation, and when an officer submits a written request to appear before an FEB to his commander. Paragraph 6-6 states that officers may seek requalification and restoration of aviation service when the original reason(s) for the disqualification and current circumstances warrant reconsideration. An FEB will be convened to review the officer’s request for requalification. Approval authority for cases of requalification will be retained by [in the applicant’s case] the Chief, National Guard Bureau.

37. Aeromedical Policy Letter (APL) concerning aeromedical adaptability (AA) states in pertinent part that an unsatisfactory AA may be a manifestation of underlying psychiatric disease or personality trait not considered compatible with aviation duties. It goes on to say that trained aircrew with an unsatisfactory AA will be referred to the aviation unit commander for administrative evaluation for nonmedical disqualifications and determination of fitness to retain the aircrew member’s aeronautical rating or military status. Requests for waiver will include a complete AMS (aeromedical summary) to include the results of any psychiatric and psychological consultation or testing and a recommendation from the aviation unit commander. All legal issues such as sexual or racial discrimination or harassment must receive appropriate administrative action including UCMJ and/or IG determination before a final medical recommendation can be made. If an underlying psychiatric disorder exists, treatment would correspond to the particular diagnosis. Treatment does not apply if the underlying reason for the unsatisfactory AA is other than psychiatric. An unsatisfactory AA is not a DSM diagnosis. It is a consensus of opinion endorsed by the Commander, USAAMC, that after thorough investigation involving the unit flight surgeon and aviation chain of command, certain behavior or conduct is unadaptable or unsuitable for Army aeronautics. If an FEB is sufficient to decide disposition of the aircrew member, an unsatisfactory AA must not be used. Rated aviators will not normally be considered for a waiver of an unsatisfactory AA unless overwhelming evidence and support exist from command as well as the local flight surgeon.

38. Aeromedical Policy Letter concerning medication waivers states that the use of Class 4 medications necessitate grounding the aviator and are not waivable for flying duty.

39. Aeromedical policy letter (APL) concerning Class 4, mandatory disqualifying medications, states in pertinent part that use of certain medications is strictly contraindicated in the aviation environment due to significant side effects. The underlying cause or need for use of these medications may result in a permanent disqualification or require a waiver for return to flying duty. A period of continuous grounding is mandatory from the initiation of therapy through cessation of the drugs plus a specified time period to rid the drug completely from the body. Continuous use of the medications is incompatible with continuation of aviation service. Waiver is not recommended. That APL goes on to designate the mandatory disqualifying medications, which include anti-depressants.

40. Dorland’s Illustrated Medical Dictionary defines Ritalin as a trademark for preparation of methylphenidate hydrochloride, which is defined as a central stimulant used in the treatment of hyperkinetic children, various types of depression, and narcolepsy.

41. Prozac is fluoxetine, described in the dictionary as an anti-depressant.

42. National Guard Regulation 600-5 prescribes procedures for management of Army National Guard soldiers in the AGR program. Paragraph 6-5 provides for involuntary separation for cause from full-time National Guard duty, and states that Adjutants General will review all recommendations for separation and make the final determination. Paragraph 6-5c(1) and (3) states that involuntary separation includes inappropriate professional and personal conduct, and loss of professional qualifications required for the performance of assigned duties.

43. Army Regulation 623-105 establishes the policies and procedures for the officer evaluation reporting system, and provides in pertinent part, policies, procedures, and detailed guidance on the preparation of OER appeals.

CONCLUSIONS:

1. The applicant was diagnosed with symptoms of ADD in 1995 as he and counsel admit. Nonetheless, Colonel “Ry,” the aviation psychiatry consultant at Fort Bragg, determined that the applicant ‘s ADD was so mild as to not be inherently disqualifying for flying duties, and based on that alone, he could remain on flight status; however, he had unsatisfactory AA, even though he had flown safely. The Board likewise believes that, based on that consultation and the applicant’s records, he was not medically unfit for flying duties, but may well have had a personal trait not considered compatible with aviation duties. Consequently, and subsequent to the consultation by Colonel “Ry,” the applicant should have been afforded the opportunity to appear before an FEB in accordance with the provisions of Army Regulation 600-105 and the APL concerning aeromedical adaptability. This determination is supported by the opinions of the Senior Flight Surgeon, Eastern Army Aviation Training Site, and the Director of the Army Aeromedical Activity. The applicant was wrongly removed from aviation service and the AGR program without due process of law.

2. The applicant should be immediately restored to aviation service. The Board notes that the applicant continued to be entitled to Aviation Career Incentive Pay until 8 April 1998. In order to correct the injustice to the applicant by not affording him due process of law, the applicant’s ACIP should continue from 8 April 1998 to this present day.

3. There is no evidence to show that the applicant was involuntarily separated from AGR duty; however, applicant and counsel’s statements that this did occur for the reasons cited by the applicant’s commander is accepted. Again, the injustice done to the applicant requires that he be restored to an AGR status, retroactive to the date that he was removed from that status. Consequently, his record should be corrected to show that he served on continuous AGR duty until this present day. He should receive all due pay and allowances, and service credit in an AGR status as a result of this decision.

4. The applicant ’s request that he be considered for further aviation service by an FEB is granted. In all fairness to the applicant, he should be afforded the opportunity to appear before an FEB, conducted in accordance with the provisions of Army Regulation 600-105 and Army Regulation 15-6. The FEB report is approved by the Chief, National Guard Bureau; however, any determination that the applicant is now medically requalified for aviation service, should be forwarded to the Commander, USAAMC, in accordance with the provisions of Army Regulation 600-105, paragraph 4-5.
5. The FEB should be convened not later than six months from the date of the decision by this Board. The applicant should be suspended from flying duties effective on the date of notification of the FEB. Final action on the FEB should be accomplished not later than 12 months from the date of the decision of this Board.

6. In directing that the applicant be afforded the due process of a hearing before a Flying Evaluation Board convened under Army Regulation 600-105, the Board takes no position on the validity of the applicant’s assertions of fact, law, or regulation regarding allegations of wrongdoing by the applicant or the command. The Board finds only that the applicant must be afforded the due process rights incorporated into the Flying Board procedures.

7. All references to the administrative action to separate him from full time AGR duty and all references to his separation from full time AGR duty on 31 August 1997 (or the date he was separated from AGR duty) should be expunged from his record. Furthermore, all adverse Aeromedical Adaptability findings related to these events should also be expunged from his records to prevent their introduction into evidence by an FEB. This does not prohibit the government from further consideration of the applicant’s medical eligibility for aviation service by the ACAP after the FEB has been completed, nor does it bar expert assistance from the Commander, USAAMC at Fort Rucker.

8. The Board acknowledges the statements made by the applicant, and confirmed by two retired warrant officers, that it was common practice in the applicant’s unit to take medications and see private physicians without always disclosing that information to the flight surgeon – and that their superiors were aware of and even encouraged this practice. These statements, and the other allegations made by the applicant, are just that – allegations, and have not been proven. Nonetheless, the applicant should be aware that the Board does not investigate allegations of misconduct. Any complaints regarding alleged criminal misconduct by members of the applicant’s former chain of command should be made to a proper investigating agency, should the applicant so desire.

9. There is no evidence, nor has the applicant provided any, concerning medical expenses or medical insurance premiums that the applicant incurred since his release from full time AGR duty, and as such, the Board cannot act on this request.

10. There is no evidence, other than the assertions of the applicant and counsel, concerning the applicant’s promotion status. Consequently, there is no evidence of error or injustice. The applicant’s request for promotion is denied.

11. The regulation under which this Board operates states that the Board will not consider an application until the applicant has exhausted all administrative remedies to correct an alleged error or injustice. Notwithstanding the Board’s acceptance of the applicant’s application, the Board will not deign to act upon his request to expunge his OER from his OMPF. There is no evidence, nor has the applicant provided any, to show that he has appealed that report in accordance with the appropriate regulation. His request to expunge the adverse OER from his OMPF is denied.

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

RECOMMENDATION:

1. That the applicant be restored to aviation service and flying duties immediately.

2. That the applicant be granted ACIP retroactive to 8 April 1998.

3. That the applicant be restored to full time AGR duty effective the date he was removed from an AGR status, with retroactive full pay and allowances and service credit in an AGR status, and that his record show that he served on continuous full time AGR duty from the date in 1997 that he was removed from that duty.

4. That all references to the administrative action to separate him from full time AGR duty and all references to his separation from full time AGR duty be expunged from his records.

5. That all adverse Aeromedical Adaptability findings be expunged from his records.

6. That the applicant be afforded the opportunity to appear before an FEB, and subsequent to the FEB report, any determination that the applicant is medically requalified for aviation service be forwarded to the Commander, USAAMC for concurrence.

7. That the FEB be convened not later than six months from the date of the decision of this Board; that the applicant be suspended from flying duties effective upon the date of notification of the FEB; and that final action on the FEB be accomplished not later than 12 months from the date of the decision of this Board.

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8. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__FNE __ __RWA _ __RTD__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Fred N. Eichorn______
                  CHAIRPERSON

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INDEX

CASE ID	AR2001058388
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020611
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	110.00 102.3
2.	115.00
3.	125.00
4.	128.00
5.	131.00
6.	134.00