RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            8 September 2005
      DOCKET NUMBER:   AR20040009160


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Larry J. Olson                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, cancellation of his indebtedness of
$9,212.00.

2.  The applicant states, in effect, that an unjust financial debt of
$9,212.00 was imposed on him for the overpayment of Aviation Career
Incentive Pay (ACIP).  He states that after 35 years of service, he will
soon be retiring still owing the government monies unjustly and unfairly
charged against him.  He states he was recommended for disqualification in
July 1999, which he found out pursuant to another inquiry.  He claims no
one in his command was aware of the recommendation at that point, and when
he became aware of the disqualification, he notified his commander, and
immediately started the appeal process.  He further indicates that being
required to pay the debt will impose an unfair financial burden on him and
adversely impact his family after retirement.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Letter, Medical Statements, Flight Physical
Examinations, Orders, Judge Advocate General (JAG) Reviews, Defense Finance
and Accounting Service (DFAS) Findings, Electronic Mail (e-mail) Messages,
Venue Change Articles, ACIP Date Miscalculations, and Attorney Legal
Review.

CONSIDERATION OF EVIDENCE:

1.  An October 1999 memorandum from the Director, United States Army
Aeromedical Activity (USAAMA), United States Army Aeromedical Center
(USAAMC), Fort Rucker, Alabama, indicates the applicant was medically
terminated from aviation service due to significant coronary artery
disease, and requested a second opinion.  This medical official confirms
that the applicant’s case was reviewed by two aeromedical cardiology
consultants, both with international reputations for academic excellence in
their specialty.  Both concurred with the finding of significant coronary
artery disease.

2.  The USAAMA Director also indicated that the applicant was determined he
was at increased risk for an in-flight acute heart event, such as fatal
incapacitating heart rhythm, chest pains, or myocardial infarction.  This
medical official concluded by stating that it was not recommended that the
applicant fly as an IFE observer in Army aircraft, but that the benefit-
risk assessment for permitting flight observer duties rested with the
United States Army Reserve Command (USARC).  His final recommendation was
the applicant’s continued medical termination from aviation service.
3.  On 24 July 2001, the Chief, Incentive Pay Brach, United States Army
Total Personnel Command (PERSCOM) published Orders Number 205-1 terminating
the applicant’s aviation service and entitlement to ACIP, effective 18
March 1999.

4.  On 14 August 2001, the PERSCOM Chief, Incentive Pay Branch prepared a
memorandum for record.  This document indicates that the responsible
aviation medical personnel requested the applicant’s permanent medical
disqualification in a 19 October 1999 memorandum.   A subsequent memorandum
from medical personnel recommended the applicant’s continued medical
disqualification.  However, these disqualification memoranda were not
processed, and the applicant remained in aviation service.  The memoranda
were again provided and resulted in the publication of termination orders
pertaining to the applicant, and collection of ACIP, effective 9 December
1998, the date of incapacitation.  ACIP was stopped effective the date the
aeromedical consultant advisory panel made the determination the
applicant’s disqualifying condition was permanent.  The applicant contacted
him when he received the orders and provided documents that confirmed he
continued flying throughout 1999 and most of 2000, his last flight occurred
on 26 September 2000 per his flight record.

5.  The PERSCOM Incentive Pay Branch Chief further indicated that there was
no evidence to suggest the applicant was aware of the permanent
disqualification, and the only document hinted that he did was a 13 July
1999 down slip that temporarily suspended him for 30-60 days.  He further
stated that while it was clear the applicant should have known that without
a waiver he was disqualified, he could not suppose what the applicant
actually believed.  He further indicated that after consulting with the
Department of the Army compensation expert, it was determined the applicant
remained entitled to ACIP until he stopped performing aviation duties as
documented by his flight record, which was 26 September 2000.  As a result,
PERSCOM Orders Number 205-1 were amended to read ACIP termination 26
September 2000.  The applicant was notified of this on 14 August 2001.

6.  On 23 May 2002, the USAAMA Director published a memorandum recommending
the applicant continued termination from further aviation service and
indicated the applicant had been permanently suspended on 18 March 1999 for
significant coronary artery disease.  He further stated that the
applicant’s case was reviewed by AAMA and discussed with an aeromedical
cardiology consultant and that a waiver recommendation could not be
offered.  He further recommended the applicant’s suspension be continued.

7.  On 28 October 2002, the PERSCOM Incentive Pay Branch Chief published a
memorandum confirming the USAAAMA determination that the applicant’s
condition was not compatible with the operational requirements of Army
aviation and as a result the applicant was terminated from aviation
service.

8.  On 4 March 2003, 30 May 2003 and 13 June 2003, the PERSCOM Incentive
Pay Chief replied to Congressional Inquiries made on behalf of the
applicant.  In these replies, he indicated that officials from the USARC
indicated that orders were published in July 1998, changing the applicant’s
ACIP from continuous to monthly because he had not satisfied the
requirements of the aviation gate system.  These orders required the
applicant to perform flight duties in order to earn flight pay.  However,
due to the applicant’s grounding, he was unable to perform those duties,
and his ACIP was terminated on 26 September 2000, the last date he
performed those duties.

9.  In connection with the processing of this case, an advisory opinion was
obtained from the Director, Army Reserve Active Duty Management
Directorate, Army Human Resources Command (AHRC)-St. Louis.  This official
indicates he completed a review of the application, and recommends the
applicant be held responsible to pay the ACIP debt in question.  He states
the governing regulation requires aviators meet the monthly flight minimums
to be eligible to continue to receive ACIP, and the applicant’s last flight
occurred on 26 September 2000.  Therefore, as of that date, he was no
longer eligible to receive ACIP.

10.  On 28 July 2005, the applicant was provided a copy of the AHRC-St.
Louis advisory opinion in order for him to have the opportunity to respond.
 To date, he has failed to reply.

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

12.  Section II of the aviation service regulation contains guidance on
ACIP.  It states, in pertinent part, that Army aviators qualified for
aviation service are entitled to receive monthly conditional ACIP only
while serving in an operational flying position.  These aviators must meet
the monthly flight minimums to be eligible.  Chapter 4 contains guidance on
Aeromedical Disqualification.  It states, in pertinent part, an aeromedical
disqualification exists when an officer does not meet the medical fitness
standards for flying duties.  The date of aeromedical disqualification is
the date the aeromedical incapacitation is diagnosed by history, physical
examination, or medical testing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his ACIP debt was unjust and the
supporting documents he provided were carefully considered.  However, there
is an insufficient evidentiary basis to support granting the requested
relief.

2.  By regulation, members who are qualified for aviation service Army
aviators are entitled to receive monthly conditional ACIP only while
serving in an operation flying position, and must meet monthly flight
minimums to be eligible.  Further, an aeromedical disqualification exists
when an officer does not meet the medical fitness standards for flying
duties.

3.  The evidence of record confirms the applicant was medically diagnosed
with coronary heart disease in October 1998.  The applicant was not removed
from flight status at this time, and it was not until a second opinion was
obtained and medical consultation completed, that a recommendation for his
termination from flight status was made by competent medical authority.  It
appears the applicant was aware of his medical condition when it was
diagnosed, and it would have been appropriate for him to inform his chain
of command at the time it was diagnosed, instead of waiting for a formal
termination recommendation from medical officials.  As a result of this
disqualifying medical condition, the applicant’s ACIP was terminated by
Department of the Army (DA) incentive pay officials, effective in December
1998, the date of incapacitation.

4.  The record further shows that because the command failed to remove the
applicant from flight status, DA incentive pay officials revised his ACIP
termination date to 26 September 2000, the last date he performed flight
duties, as recorded in the unit flight records.

5.  In view of the facts of this case, it appears the applicant’s ACIP was
terminated in accordance with the applicable regulation based on his
medically disqualifying condition.  Further, all questions regarding the
date of termination of ACIP were resolved in favor of the applicant by
Departmental officials.  Thus, there appears to be no error or injustice
related to the ACIP debt he incurred.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WDP    ___JTM _  ___LJO _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            ____William D. Powers____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009160                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/08                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.1000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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