MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 August 2002
         DOCKET NUMBER: AR2002072511

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Ms. Paula Mokulis		Member
Mr. Donald P. Hupman		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)

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APPLICANT REQUESTS: In effect, that the orders which terminated his service and pay as an aviator be revoked, that he be reinstated to active duty as an aviator in military occupational specialty (MOS) 153D, that he be allowed to attend the aviation refresher course and maintenance test pilot (MTP) course at Fort Rucker, Alabama, that he be awarded the Senior Aviator Badge, and that he be paid Aviation Career Incentive Pay (ACIP) for the period of 22 February 1998 to 24 November 1999.

APPLICANT STATES: In effect, that he was unjustly permanently disqualified from flying duties and as a result, his MOS was withdrawn, his ACIP terminated, he was denied a waiver to fly, and was represented by an inaccurate record before promotion boards, which caused him to be twice non-selected for promotion to the rank of chief warrant officer three (CW3) and to be released from active duty (REFRAD). He goes on to state that he was diagnosed with an eye condition in December 1997, during a routine flight physical and the Army Aeromedical Activity (USAAMA) at Fort Rucker recommended that he be permanently disqualified from flying duties. He continues by stating that the Total Army Personnel Command (PERSCOM) Incentive Pay Branch published orders on 11 March 1998, terminating his aviation service and entitlement to ACIP. He was then notified by the Warrant Officer Branch that he was to be reclassified. He further states that he reclassified to MOS 918B, believing that he had a chance to medically re-qualify for flying duty. He also states that it was unjust to permanently disqualify him from flying duties because the regulation allows a temporary suspension for up to 6 months, provided there is a possibility to eventually become medically qualified. Additionally, he was seen at an Air Force hospital, where he was found fit to fly and the USAAMA issued a memorandum on 16 April 1999, stating that he was fit to fly and recommended a waiver be granted. He contends that because he was unjustly terminated from aviation service, the promotion boards in 1998 and 1999 that failed to select him for promotion did not have an accurate record that reflected his potential for promotion. Had he not been terminated, he would have completed the MTP course, would have received an assignment to a unit as a test pilot, would have had 14 more months of aviation experience, would have had two additional evaluation reports as an aviator and would have earned his Senior Aviator Badge. Consequently, his aviation career was ended, with little possibility of a flying career outside the Army and has resulted in a loss of over $117,000 in pay and allowances since leaving the Army.

EVIDENCE OF RECORD: The applicant's military records show:

He initially enlisted on 18 September 1986, for a period of 4 years and training as a satellite communications equipment repairman. He was promoted to the pay grade of E-5 on 20 March 1990 and was accepted for warrant officer flight training. He attended and successfully completed his warrant officer training on 8 May 1991, when he was honorably discharged for the purpose of accepting an appointment as a Reserve warrant officer. He had served 4 years, 7 months and 21 days of total active service.

On 9 May 1991, he was commissioned as a Reserve Warrant Officer One (WO1), with a concurrent call to active duty as a helicopter pilot. He was promoted to the rank of chief warrant officer two (CW2) on 8 May 1993.

In October 1997, during an annual flight physical, he was unable to attain 20/20 vision and was diagnosed with an eye condition called optic neuritis. He was referred to an Air Force (USAF) hospital in Texas and underwent an Opthalmology examination on 2 December 1998. The examination revealed that he suffered from Optic neuropathy OS, indeterminate etiology – non-progressive, Afferent papillary defect, Superior Visual defect OS, within 20 degrees of fixation, and standard visual acuity OS. The examining physician recommended disqualification for Army FC-II for diagnoses #1, 3 and 4 (USAF FC-II for diagnoses #1 through 4). He deferred formal waiver recommendation to the USAAMA; however, he indicated that he would recommend a FC-II waiver in USAF crewmember. He recommended yearly follow-ups or sooner with any changes.

On 11 March 1998, the PERSCOM, Incentive Pay Branch, published orders terminating the applicant’s entitlement to ACIP, effective 18 February 1998, due to his medical incapacitation on 22 January 1998.

On 1 April 1998, the PERSCOM Warrant Officer Division published a memorandum through the chain of command, notifying the applicant that his MOS was being withdrawn and that a determination whether to reclassify him would be made. He was advised to submit matters in his own behalf and to select three specialties in which he believed he felt qualified to serve. He was also advised that he could elect separation from the service and that the proceedings would continue without his input if he failed to respond.

The applicant attended the Electrical Systems Maintenance Technician Warrant Officer Basic Course (MOS 918B) at Fort Gordon, Georgia, from 1 June to 9 October 1998. He completed the course and was awarded the MOS on graduation. He was reassigned to Fort Rucker for duty in MOS 918B.

On 18 April 1999, the USAAMA submitted a recommendation to the PERSCOM recommending that the applicant be granted a waiver for his medical condition because it did not pose a threat to the applicant’s personal safety or aviation safety at that time.

The PERSCOM responded to the USAAMA recommendation on 20 May 1999, indicating that the applicant had been disqualified from further aviation duties on 18 February 1998 for Optic Neuritis with Scotoma and that he had been reclassified to an ordnance MOS. After considering all of the recommendations from both USAF and USAAMA officials and coordinating with the warrant officer branch, a determination had been made that he would not be reclassified back to an aviation MOS. The PERSCOM denied the recommendation for a medical waiver.

The applicant obtained a Federal Aviation Administration (FAA) Medical Certificate First Class (FAA Form 8500-9) on 21 May 1999, which indicates that he had no limitations.

On 4 October 1999, the applicant was notified by the Department that he had been twice non-selected for promotion to the rank of chief warrant officer three (CW3) and that he was required to be released from active duty (REFRAD) no later that 1 May 2000.

Accordingly, he was honorably REFRAD on 24 November 1999, under the provisions of Army Regulation 600-8-21, paragraph 2-41, due to non-selection for permanent promotion. He had served 14 years, 2 months and 6 days of total active service and received $41,456.04 in separation pay. He was transferred to the United States Army Reserve (USAR) Control Group (Individual Ready Reserve).

A review of the applicant’s records reveals no derogatory information, no evidence of any appeals of his removal from flight status or the medical determination in his case, and shows that with the exception of one evaluation, in which he received a below center of mass rating, the remainder of his evaluation reports were deemed center of mass. The Board also finds no evidence of a formal application for reinstatement to aviation duties based on the absence of a disqualifying factor in the available records.

In support of his application, the applicant submits a letter of recommendation from a chief warrant officer five (CW5) who is serving as the commander of the V Corps Aviation Safety and Standardization Detachment in Germany. The CW5 opines that in his opinion, the applicant should not have been permanently disqualified for aviation service/flying duties, that a full medical review should have been conducted and in light of the USAAMA changing their recommendation to approve a waiver, he should be reinstated to aviation duties and reclassified back into his aviation MOS.

Army Regulation 600-105 covers the aviation service policies of rated Army officers and flight surgeons. It provides, in pertinent part, that medical termination from aviation service is required for aeromedical disqualifications that are not likely to result in medical requalification with or without an aeromedical waiver within 180 days. It further provides that a flight surgeon may recommend to the commander, USAAMA, by an aeromedical summary, than an aviator who has been medically terminated from aviation service be requalified with or without an aeromedical waiver. If USAAMA concurs, a recommendation will be forwarded to the Commander, PERSCOM (TAPC-PLT-A and TAPC-OPH-MC) for approval. Officers may request requalification and restoration of aviation service when the original reasons for disqualification no longer exists. The termination authority (PERSCOM) may approve requalification and restoration, based on the best interests of the Army and the needs of the officer at the time of the request.

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’s contentions and supporting documents have been noted by the Board. However, he has failed to show through these, as well as the evidence of record, that he was unjustly removed from his aviation specialty due to medical disqualification.

2. The applicable regulations require removal when a determination has been made that an individual cannot attain medical requalification within 6 months of being diagnosed as medically unqualified. The applicant was diagnosed in October 1997 and his ACIP was terminated in February 1998. While he may have been granted a waiver of his disqualification, the decision to terminate his aviation duties rested with the PERSCOM. The PERSCOM, after reviewing the facts and circumstances in his case and coordinating with his branch, determined that he should not be granted a waiver. The Board finds no basis of evidence to show that he was treated unfairly under the circumstances.

3. While it is indeed unfortunate that the applicant was not selected for promotion to the rank of CW3, the Board also finds no evidence to show that his non-selection is attributed to his reclassification to another MOS.

4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

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

___ls____ ___pm __ __dh____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002072511
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/06
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 192	110.0300/REINSTATEMENT
2. 243	115.0200/REM FROM FLT STAT
3.
4.
5.
6.