PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 7 August 2003
         DOCKET NUMBER: AR2003084110


         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas B. Redfern		Member
Ms. Mae M. Bullock		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 reinstatement in the Colorado Army National Guard (COARNG). (In a 9 May 2001 letter to his senator, he requested reinstatement in the COARNG with assignment to full flight status and restitution of lost flight pay.)

3. The applicant states, in effect, that The Adjutant General of Colorado abused his authority when he failed to abide by the Flight Evaluation Board's (FEB's) decision that he be returned to flight status. He was nonselected for retention due to the same abuse of authority.

4. The applicant’s military records show that, after having had prior service, he entered the COARNG as an aviator warrant officer in 1984. He was promoted to Chief Warrant Officer Three (CW3) on 27 February 1986.

5. The applicant was apparently temporarily suspended from aviation duties on 10 July 1994. A COARNG Army Aviation Support Facility memorandum dated 7 March 1995 notified the applicant he was suspended from aviation service effective 7 March 1995 because he possessed undesirable aviator traits. Effective 27 April 1995, he was attached to the Aviation Division in a non-operational position.

6. A Department of the Army Inspector General (DAIG) report dated June 1998 notes the applicant was involved in a conflict with his platoon leader during annual training in 1994. This escalated into a confrontation with the battalion commander, who insisted the applicant transfer to the Individual Ready Reserve. The applicant refused and was then referred to an FEB. His flight pay was suspended while waiting for the FEB to convene. The FEB was held in February 1995 and recommended the applicant be returned to flight duties. The following month, a new Safety Army Aviation Officer (SAAO) first attempted to suspend the applicant for the same allegations reviewed and cleared by the FEB and then later attached him to nonflying duties. The results of the FEB were never forwarded to the approving authority for determination.

7. The DAIG found that it was within the authority of The Adjutant General, Colorado to place his personnel assets as he determined in his organization. It was within the authority of the standardization board to recommend an FEB be initiated on a pilot. It was not (emphasis added) within the purview of the forum in which the discussion and vote took place to recommend an individual for permanent removal from a flying position. The FEB was the appropriate forum to recommend the termination of flying duties and had rendered its determination that the applicant was fit for flying duties. The FEB's determination to return the applicant to aviation duties was never forwarded to the Chief, National Guard Bureau (CNGB), who was the approving authority. Instead, The Adjutant General of Colorado called a special meeting of the standardization board in which a vote was taken to advise an end to the applicant's aviation duties in the COARNG. The applicant's due process was violated based on the incomplete FEB process and the subsequent inappropriate forum utilized to determine his future flight status as an aviator.

8. The DAIG (erroneously) concluded that the allegation [The Adjutant General of Colorado] improperly used an aviation standardization board meeting to eliminate an aviator from the National Guard was substantiated." By letter dated 4 June 1998, the DAIG (correctly) notified the applicant they found that the allegation that The Adjutant General of Colorado improperly took him off flight status was substantiated.

9. By letter dated 14 January 2000, the applicant was notified that he had been considered for retention by the COARNG Selective Retention Board but was not selected for retention.

10. On 16 March 2000, the applicant was discharged from the ARNG and transferred to the U. S Army Reserve Control Group (Reinforcement). He had completed a total of 28 years, 4 months, and 7 days of service for pay.

11. The applicant's Officer Evaluation Report (OER) history is shown below. Part IVa is Performance Evaluation – Professionalism and consists of 14 attributes rated from a high of "1" to a low of "5." Part Vb is Performance and Potential Evaluation (with ratings of Always Exceeded Requirements, Usually Exceeded Requirements, Met Requirements, Often Failed Requirements, and Usually Failed Requirements). Part Vd is Promotion Potential (with ratings of Promote Ahead Of Contemporaries, Promote With Contemporaries, Do Not Promote, and Other). Part VIIb is senior rater's Potential Evaluation where * indicates the SR's block rating):

         Ending Period of OER     Part Vb  Part Vd  Part VIIb       

         30 September 1986                 Usually  With              Partially illegible but
                                                                                 he is rated in the
                                                                                 5th of 9 blocks

He received 3 "2" ratings in Part IVa (demonstrates appropriate knowledge and expertise in assigned tasks; motivates, challenges, and develops subordinates; and seeks self-improvement).

         30 September 1987                 Usually  With              0/3/1/2/*1/0/0/0/0

He received 1 "2" rating in Part IVa (motivates, challenges, and develops subordinates).

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Ending Period of OER     Part Vb  Part Vd  Part VIIb       

         30 September 1988                 Usually  With              0/4/4/9/*3/0/0/0/0

He received 2 "2" ratings in Part IVa (motivates, challenges, and develops subordinates; and displays good judgment).

16 September 1989                 Always   Ahead             0/6/10/14/*4/0/0/0/0

He received 1 "2" rating in Part IVa (motivates, challenges, and develops subordinates).

         16 September 1990                 Usually  With              1/1/1/*1/0/0/0/0/0

He received 3 "2" ratings in Part IVa (motivates, challenges, and develops subordinates; clear and concise in written communication; and seeks self-improvement).

         16 September 1991                 Always   Ahead             2/0/*2/0/0/0/0/0/0

He received 1 "2" rating in Part IVa (clear and concise in written communication).

(The applicant was promoted to Chief Warrant Officer Four (CW4) on 6 February 1992.)

         16 September 1992                 Usually  Other             2/6/*1/0/0/0/0/0/0

He received all "1" ratings in Part IVa. "Other" was checked because he had reached his maximum grade.

         16 September 1993                 Usually  Other             0/0/0/*1/0/0/0/0/0

He received 4 "2" ratings in Part IVa.

         16 July 1994                       Often Failed     Do Not   8/8/1/*2/0/0/0/0/0

He received 8 "3" ratings in Part IVa.

         30 June 1995              Met               With              8/8/*2/2/0/0/0/0/0

He received 7 "2" ratings in Part IVa.

         30 June 1996              Usually  With              17/22/*8/0/0/0/0/0/0

He received 5 "2" ratings in Part IVa.
         Ending Period of OER     Part Vb  Part Vd  Part VIIb       

30 June 1997              Met               With              3/15/4/*1/0/0/0/0/0

He received 5 "2" and 1 "3" ratings in Part IVa.

         31 May 1998                        Met               With              6/25/*6/1/0/0/0/0/0

He received 6 "2" ratings in Part IVa.

12. The applicant's last available OER was under the new rating system. His performance and potential evaluation was rated as Satisfactory Performance, Promote (other ratings were Outstanding Performance, Must Promote; Unsatisfactory Performance, Do Not Promote; and Other). His SR rated his overall promotion potential as Fully Qualified (other ratings were Best Qualified, Do Not Promote; and Other). His SR gave him a center-of-mass block rating.

13. Army Regulation 600-15 (Aviation Service of Rated Army Officers), Table 5-1, states that commanding generals may appoint an FEB and impose a temporary suspension for up to 180 days. If final fitness has not been determined by the end of 180 days, the appointing authority may request an extension, in the case of ARNG aviators, from the CNGB. Paragraph 6-1e states that an FEB report will be approved by the approving authority. For the ARNG, the only FEB approving authority is the CNGB.

14. National Guard Regulation 635-102 (Officers and Warrant Officers Selective Retention) prescribes policies for establishing and conducting selection boards used in the ARNG program for selective retention of offices and warrant offices beyond 20 yeas of qualifying service for retired pay. It states that Officer Selective Retention Boards will make an evaluation of the future benefits that can be expected to accrue to the ARNG for the continued serviced of each individual considered. The board should consider the following factors in arriving at its decision: (a) Potential for replacing present senior commanders and staff officers or specialists in the case of warrant officers; (b) adequacy of civilian and military education for performance of duties associated with higher level command and staff assignments; (c) demonstrated performance as attested by evaluation reports, academic reports, and results of inspections and evaluations that cite the manner of performance of the officer; and (d) medical condition and physical fitness so that no significant assignment limitations are evidenced.

CONCLUSIONS:

1. The Board notes that the DAIG found it was within the authority of The Adjutant General, Colorado to place his personnel assets as he determined in his organization and it was within the authority of the standardization board to recommend an FEB be initiated on the applicant. However, the DAIG substantiated the allegation that the applicant was improperly taken off flight status after the FEB determined he should be returned to flight duties.

2. The Board notes that the regulation permitted The Adjutant General, Colorado to impose a temporary suspension from flight status for up to 180 days on the applicant. Thereafter, any actions to keep the applicant off flight status without approval from the CNGB was unauthorized.

3. The Board concludes that it would be appropriate to pay to the applicant any flight pay he would have been entitled to had he been returned to his previous flight status 180 days after he was first suspended from those duties around July 1994.

4. The DAIG report erroneously concluded that The Adjutant General, Colorado improperly used an aviation standardization board meeting to eliminate the applicant from the National Guard. (The DAIG's June 1998 letter to the applicant correctly informed him that the allegation he was improperly taken off flight status was substantiated.) The Board notes that the applicant was separated from the ARNG due to his nonselection for retention by an Officer Selective Retention Board.

5. The Board considered the possibility that the Officer Selective Retention Board made the decision not to retain the applicant as a result of undue influence. However, the Board also noted the applicant's record of performance and potential, as evidenced by his OER history going back to when he was first promoted to CW3. That history shows he was never rated as an outstanding officer. In fact, in all but a few instances he was rated by his SRs as being at the bottom of the pack in potential.

6. It is therefore not evident to the Board that the Officer Selective Retention Board did not properly make its evaluation of the applicant's future benefit to the ARNG based on his record of performance. In the absence of evidence to the contrary, the Board presumes that undue influence was not a detrimental factor in the Officer Selective Retention Board's decision not to retain him.

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

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by paying to the applicant any flight pay he would have been entitled to had he been returned to his previous flight status 180 days after he was first suspended from flight duties around July 1994.
2. That so much of the application as pertains to the applicant's reinstatement in the COARNG with assignment to full flight status is denied.

BOARD VOTE:

__aao___ __tbr___ __mmb___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Arthur A. Omartian
                  CHAIRPERSON

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INDEX

CASE ID	AR2003084110
SUFFIX
RECON
DATE BOARDED	20030807
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	110.03
2.	128.04
3.
4.
5.
6.