MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 11 SEPTEMBER 2003
         DOCKET NUMBER: AR2002083058

         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
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. Christopher J. Prosser		Member
Mr. John T. Meixell		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 his records be corrected to show that he was entitled to $42,000.00 “incentive bonus” based on a period of 3 years and 6 months during which he contends he would have been eligible.

APPLICANT STATES: In effect, that he was ordered to active duty in 1999 for the purpose of being trained as an AH-64 (Apache Helicopter) pilot and subsequent assignment in that position. He states that he “met or completed all the requirements” to begin the “training phase of the AH-64 Aircraft Qualification Course [AQC]” but was not assigned to the AH-64 AQC. He notes he was instead scheduled to attend UH-1 (Huey Helicopter) IPC (Instructor Pilot Course). He states that he served in that capacity until April 2000 when he was assigned as the protocol officer for the 212^th Aviation Brigade at Fort Rucker. He states he was subsequently assigned to Fort Campbell, Kentucky and remained there “until a mandatory reserve retirement on 31 March 2002.” The applicant contends that it was his “full intention to enter onto active duty and fulfill the terms and conditions of the active duty order.” He states that because the Army did not “uphold their part of the agreement” he was “denied the incentive bonus for which [he] would have been fully qualified….” He states that had he been trained as an AH-64 pilot he would have accepted integration into the Regular Army and remained on active duty until December 2002. He notes that the incentive bonus would have “amounted to $12,000.00 per year for every year [he] remained in an active AH-64 pilot position” and contends that he would have served for 3 years and 6 months as an AH-64 pilot following completion of training, which he estimated to be approximately 6 months. He states that the $42,000.00 is the “amount that [he] should receive without delay to settle the U. S. [United States] Army’s responsibility in fulfilling their part of the agreement that brought [him] on active duty.”

In support of his request he submits a copy of his the order assigning him to active duty and a copy of the orders reassigning him to Fort Campbell, Kentucky.

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

He initially entered military service as an enlisted member with the United States Air Force in April 1963. He continued to serve as an enlisted military member in a variety of components, including a period of active duty as an Army enlisted soldier.

He was appointed as an aviation warrant officer in 1982 while a member of the Army National Guard and was ultimately transferred to the United States Army Reserve.

Between July 1998 and September 1998 the applicant attended, and completed, the CH-47D (Chinook Helicopter) Aviator Qualification Course. According to the academic evaluation report, which was rendered on the applicant upon completion of the course, he was a member of the United States Army Reserve while undergoing that training.

On 9 December 1998 orders were issued by the United States Total Army Personnel Command in St. Louis, Missouri, which ordered the applicant to active duty as an “obligated volunteer officer” for a period of 4 years to “fulfill active Army requirement.” The order notes, in a lengthy “additional instructions” section, that the applicant “is accessed contingent upon progression to readiness level 1 (RL1) within the time limits prescribed in the appropriate AH-64 aircraft training manual (ATM).” RL1, in simplistic terms, denotes that an aviator is no longer required to fly with an instructor pilot. The special instructions also note that “officer[s] who do not progress to RL1 in the prescribed time will be referred to a flight evaluation board and considered for separation.” The orders indicate that the applicant was being assigned to the Aviation Center at Fort Rucker, Alabama and that his reporting date was established as 5 January 1999. However, the additional instructions also noted an “early report” was authorized. The authority, listed as the basis for ordering the applicant to active duty, was “10 USC [United States Code] 12301(d).”

Section 12301(d) of Title 10 USC states that “at any time, an authority designated by the Secretary concerned may order a member of a reserve component under his jurisdiction to active duty, or retain him on active duty, with the consent of the member.”

There were no other documents available to the Board, nor provided by the applicant, which further explained the basis for his being ordered to active duty. However, during the period in question the Army did have a “Limited Call to Active Duty Program” which permitted United States Army Reserve warrant officers to volunteer for active duty. The program was open to all aviation warrant officers, except those in specialty 150A and 151A, neither of which applied to the applicant. The program announcement noted that “approved applicants for AH-64 training will be accessed contingent upon progression to readiness level (RL1) within the time limits prescribed in the appropriate AH-64 aircrew training manual (ATM).” However, it did not indicate that all aviation warrant officers would be scheduled for AH-64 training if applying under the Limited Call to Active Duty Program.

The AH-64 Aircraft Qualification Course was approximately 12 weeks long.

Documents available to the Board indicate that the applicant entered active duty on 30 December 1998 and on 4 January 1999 executed an oath of office as a “Reserve Commissioned Officer” in pay grade W-4.

An annual performance evaluation report, rendered for the period 22 January 1999 through 21 January 2000, notes that the applicant was performing duties as the “Company Executive Officer/UH-1 Pilot” for Headquarters and Headquarters Company, 1^st of the 212^th Aviation, Aviation Training Brigade. His duties, according to evaluation report, included assisting the company commander with daily operations of the company, providing command control and flight following services to the Fort Rucker local flying area, providing general aviation services for search and rescue, VIP (Very Important Person) support, AIT (Advanced Individual Training) support and all other required missions. It also noted that he was responsible for scheduling pilots and aircrafts, as necessary, to meet Headhunter operational requirements. His additional duties included company operations officer, assistant battalion hazards map officer, hearing conservation officer, and voting assistance officer. His senior rater indicated that his future assignments should include “UH-1 Pilot, AH-64 Pilot” and “Battalion Assistant Staff Officer.”

There is no evidence in available records that the applicant completed the UH-1 IPC after being assigned to Fort Rucker. The UH-1 IPC is approximately 8 weeks in length.

The applicant’s next performance evaluation report, rendered for the period
22 January 2000 through 21 January 2001, indicates he was performing duties as the Deputy Chief of Protocol for the United States Army Aviation Center and Fort Rucker.

On 19 July 2001 orders were issued by the United States Army Aviation Center and Fort Rucker, reassigning the applicant from Fort Rucker to Fort Campbell, Kentucky. The applicant’s reporting date to Fort Campbell was established as
1 August 2001. The reporting date was subsequently changed to 1 September 2001.

The applicant was released from active duty at Fort Campbell, Kentucky on
31 March 2002. The authority for his separation was paragraph 2-23, Army Regulation 600-8-24, and the narrative reason for his separation was recorded as “MAXIMUM AGE.” The separation document also indicates that the applicant was “entitled to full involuntary separation pay” and received more than $79,000.00 in separation pay.

Although records available to the Board do not confirm that the applicant had sufficient qualifying service for retirement pay purposes, the applicant did indicate in his application to the Board that his “Present Status” was “Retired.”

Army Regulation 600-8-24 establishes the policies and provisions for the separation of officers. Paragraph 2-23 states that an officer will be involuntarily released from active duty on the last day of the month in which he or she attains specific maximum age levels. It notes that a “Reserve commissioned warrant officer” will be involuntarily released from active duty at age 60.
Department of Defense Financial Management Regulation states, in pertinent part, that warrant officers who are on flying status receive monthly flight pay, known as Aviation Career Incentive Pay (ACIP). The amount of pay received is based upon years of aviation service, not years of military service. Monthly ACIP rates, in effect at the time the applicant was serving on active duty ranged from a low of $125.00 per month to a high of $840.00 per month.

In March 1999 the Army implemented an additional aviation bonus program known as the Aviation Continuation Pay (ACP) Program. That program provided for annual payments of $12,000.00 and $1,000 for each residual month of the active duty service obligation they would incur by committing to participate in the program. It was a monetary incentive program to encourage aviators to remain on active duty through 14 years of commissioned service. The program was initially targeted to retention problems in the AH-64 (Apache Helicopter) arena, but was subsequently expanded to include MH-47 (Special Operations Aircraft) pilots. Generally individuals were required to be assigned to valid AH-64 or MH-47 positions, remain in the flying position for the entire period of the service agreement, agree to remain on active duty to complete 14 years commissioned service, and have completed at least 6 years, but less than 13 years of aviation service on the effective date of the agreement.

In FY (Fiscal Year) 2002 (1 October 2001-30 September 2002) the ACP program was further expanded to include most aviation warrant officer specialties. The basic eligibility requirements, including being assigned to a valid flying position remained in effect.

Army Regulation 601-100, which establishes the policies and provisions for the appointment of warrant officers in the Regular Army, notes that warrant officers must be able to completed 20 years of active service by age 62 in order to apply for Regular Army integration.

Attempts to secure a current copy of the applicant’s chronological statement of retirement points were not successful. However, a statement completed in 1993 indicated that the applicant had more than 14 years of qualifying service for retirement purpose at age 60, but that he had less than 7 years of active service at the time.

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. While the applicant does not specifically identify the “incentive bonus” he contends he would have been entitled to had he been enrolled in the AH-64 (Apache Helicopter) training course and subsequently assigned to an AH-64 flying position, the fact that he notes the bonus amount was $12,000.00 annually, supports a conclusion that he is seeking entitlement to Aviation Continuation Pay.

2. While the applicant maintains that he was ordered to active duty for the purpose of attending the AH-64 Aircraft Qualification Course, he has failed to explain why he did not raise the issue of a breach of commitment at the time he was assigned to other duties at Fort Rucker. The Board also notes that the ACP program was announced in March 1999 and yet the applicant did not allege a breach of commitment until several months after his March 2002 involuntary release from active. Such evidence further supports a conclusion that the applicant may have willingly accepted assignment to other duties in lieu of attendance at the AH-64 course. If an individual knew that he stood to lose $12,000.00 as an incentive bonus, it would be reasonable to expect him to at least argue for assignment to the duties he contends the Army had committed and for which he agreed to be ordered to active duty for.

3. The applicant contends that if he had been permitted to attend the AH-64 training as promised, he would have accepted Regular Army integration and remained on active duty until December 2002. The Board notes, however, that one of the requirements for Regular Army appointment is that the applicant be able to complete 20 years of active service by age 62. Based on evidence available to the Board, it does not appear that the applicant would have been able to meet that requirement, if he in fact had less than 10 years of active service at the time he entered active duty in December 1998. His involuntary separation at age 60 in March 2002 supports a conclusion that the applicant had reach a specific limit which required his release from active duty.

4. The Board also notes that the ACP program was applicable to individuals with between 6 and 13 years of aviation service. The evidence available to the Board indicates that the applicant was appointed as an aviation warrant officer in 1982. As such, at the time the applicant entered active duty he would have already had nearly 16 years of aviation service. If the incentive bonus the applicant contends he was denied because he was not permitted to attend AH-64 training was in fact the ACP, the information available to the Board indicates that he would not have met the application requirements and hence could not have received the incentive bonus, even if he had completed the training and been assigned to a valid AH-64 flying position.

5. Although it is not entirely clear why the applicant was ordered to active duty, it does appear that he may have been a volunteer under the Limited Call to Active Duty Program. The authority cited in his active duty orders (Title 10, United States Code, Section 12301(d), which permitted an individual to be called to active duty only with the individual’s concurrence, supports this conclusion. The Board concludes, based on the evidence available, that if the applicant did volunteer to come on active duty for the purpose of under going AH-64 train, it is reasonable to believe that upon arrival at Fort Rucker, it was discovered he was rapidly approaching the maximum allowable age for retention on active duty and as such a determination was made at that point not to enroll him in training for which the military would expend considerable funds only to have the services of that individual for approximately 3 years. As such, the applicant was likely offered an assignment to other duties in order to remain in an active status, where he would continue to accumulate retirement points, and qualifying years of service for retirement purposes.

6. 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 that requirement.

7. 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

__SK ___ __CJP __ __JTM __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002083058
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030911
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	128.00
2.
3.
4.
5.
6.