RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 June 2005
      DOCKET NUMBER:  AR2004103203


      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. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughessy        |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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, that his disqualification from
aviation service be reversed and expunged from his record; that the
recommendation of the Flight Evaluation Board (FEB) of 6 September 2003 be
adopted and his record be corrected to show its recommendations were
approved; and that he receive back pay, allowances and bonuses for the
period of his disqualification.

2.  The applicant states, in effect, that his argument is presented by
counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the same relief outlined by the applicant.


2.  Counsel states, in effect, that the applicant was the victim of a
political solution created by his command to resolve a wartime political
issue in Iraq.  He further claims the applicant’s disqualification from
aviation service was done to appease the indigent population and to
insulate the command from political criticism.  Counsel argues that the
applicant followed the orders of a senior commissioned officer while
piloting his helicopter and the implementation of those orders resulted in
an FEB.  He furthers states the FEB recommended the applicant be restored
to aviation service with certain restrictions, but those recommendations
were ignored by the command and disapproved.  As a result, the applicant,
an outstanding aviator, cannot fly and will not fly again without the
Board’s intervention.

3.  Counsel further states that the findings and recommendations of the FEB
were found to be legally sufficient by the command’s reviewing attorney,
who also determined there was sufficient evidence to support the FEB
findings.  However, undaunted by procedural due process, the FEB appointing
authority, the applicant’s brigade commander, disapproved the FEB’s
findings and recommendations and substituted his own.  He found the
applicant culpable with respect to all allegations reviewed by the FEB and
added an integrity issue.  He finally recommended the applicant’s
disqualification from aviation service.  This position was affirmed by the
reviewing authority, the 1st Armored Division Commander.
4.  Counsel contends there are two ways to address this case.  One way,
which has been admirably done by military counsel, is to demonstrate that
the FEB findings and recommendations were rational and reasonable, and that
the approving authority’s intervention was unreasonable.  The other way,
which was not available to a military defense lawyer in a combat zone, is
to show that political considerations and command influence preordained
this outcome, which was both improper and unjust.

5.  Counsel further argues that under the governing regulation, there are
only eight reasons for convening a FEB.  In this case, only one of these
eight defined reasons was cited.  This reason, which was the basis for the
FEB held on the applicant, was the flagrant violation of flying
regulations.  The FEB specifically found, after considering the regulatory
guidance, that there was no such flagrant violation.  Counsel also
indicates that a former commander of the applicant, with 22 years of
aviation experience, provides a memorandum directly rebutting the findings
of the applicant’s brigade commander.  He points out that there were no
written rules prohibiting flights of the kind in question and that risk
assessment in combat environments is left to the pilot in charge, which in
this case was the applicant.  The applicant’s former commander also stated
that rules couldn’t be written to assess risk in all situations.  He claims
the situation in question was  unique because the applicant had a senior
ground commander on board.  Further, the policy in effect dictated that
anti-coalition sentiment was to be removed.  If the ground commander, who
was fluent in Arabic, believed the flag was anti-coalition material, its
removal was appropriate.

6.  Counsel further states that although not blameless, the applicant
became the subject of a command orchestrated effort to place blame in a
circumstance that had gained press notoriety.  He further indicates that
when the FEB did not punish the applicant as promised by the command, the
command took it upon itself to punish, as promised from the day of the
incident.  Counsel claims the brigade commander’s gratuitous effort to
attack the applicant’s integrity was thoroughly rebutted by military
counsel and it was never alleged during any of the proceedings that the
applicant made a false official statement, or that he engaged in false
swearing.  Counsel concludes by stating that at no time was a show cause
board, Article 15 or court-martial initiated for misconduct, because there
was no misconduct.
7.  Counsel provides the following documents in support of this
application:  Summary of Proceedings of the FEB, Report of Proceedings of
the FEB, Brigade Commander’s disapproval of FEB, Applicant’s Military
Counsel Rebuttal to FEB Disapproval, Military Counsel Request for Approval
of FEB to the Reviewing Authority, Division Commander’s Approval of FEB
Disapproval, FEB Exhibits, Commander Statement on Punishment for the
Incident, FEB Appointment of Challenged Member and Naming of Challenged
Member as Expert Witness, Command Attorney Legal Review of FEB, and Power
of Attorney for spouse.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record confirms his outstanding performance record as
an Army aviator.  Of the last six officer evaluation reports (OERs) he
received prior to the incident, the applicant’s senior raters evaluated him
in the center of mass on two reports and above center of mass on four
reports, which includes the three reports he received just prior to the
incident.  In the OER he received for the period 1 June 2002 through 31 May
2003, he was evaluated as a squadron safety officer, who was responsible
for advising the commander on all matters pertaining to safety and risk
management.  The rater on the report noted the applicant’s outstanding
performance in this position and he received an above center of mass
evaluation from his senior rater.

2.  On 13 August 2003, the applicant was the pilot in charge of a UH-60
helicopter on a mission for coalition forces in Iraq.  This aircraft was
involved in an incident that involved the hovering of his aircraft next to
a communications tower in Sadr City in an attempt to remove a flag.

3.  On 14 August 2003, an investigating officer (IO) was appointed pursuant
to Army Regulation (AR) 15-6 to conduct an investigation into the
circumstances surrounding the 13 August 2003 incident in question.

4.  On 16 August 2003, the AR 15--6 IO completed his findings and
recommendations.  He found that the aircraft piloted by the applicant did
attempt to remove an Army of Mohammad flag from a tower by hovering over
the tower while the crew chief attempted to cut the flag away.  The IO also
found the mission commander (ground commander) on board the aircraft
indicated the flag was illegal and that the Iraqies had been told not to
put the flag up.  The attempt to remove the flag by the aircraft crew was
based on the mission commander’s guidance.
5.  The AR 15-6 IO further found the ground commander did not know if the
flag and group it represented were legal and did not consult the chain of
command prior to taking action.  The IO also found that the ground
commander and the applicant exercised poor judgment in attempting to remove
the flag from the tower.  The IO recommended that an aviation safety
officer look at the risk of trying to cut away a banner attached to a fixed
structure from an aircraft; that Soldiers be trained in cultural awareness
and significance of acts by coalition forces and possible impact of those
actions.

6.  On 18 August 2003, the commander of the 2nd Armored Cavalry Regiment
approved the IO’s findings.  He recommended the ground commander be
relieved of his command and that the applicant’s actions be evaluated by a
FEB under the provisions of AR 600-105.

7.  On 30 August 2003, the applicant’s brigade commander appointed an FEB
to determine whether the applicant flagrantly violated flying regulations.
The FEB was directed to specifically investigate the facts and
circumstances surrounding the applicant’s piloting of an Army aircraft
within close proximity of a Mosque that displayed a banner, which
subsequently led to a demonstration consisting of over 3,000 Iraqis, and to
determine whether justification existed for the applicant’s continued
aviation service or authorization to pilot Army aircraft.

8.  On 3 September 2003, the applicant’s defense counsel challenged a
CW5 member of the FEB due to a conflict of interest.  On 4 September 2003,
the appointing authority removed the CW5 from the FEB.  On the same day,
the FEB recorder announced that the CW5 in question would be called as a
witness.

9.  On 6 September 2003, the FEB convened to consider the applicant’s case.
The summary of proceedings shows that after carefully evaluating the
evidence before it, the FEB found the applicant did not flagrantly violate
flight, safety or accident prevention regulations, and that the act in
question did not show he lacked judgment to a degree that rendered him
unfit or unqualified for flying duties.  The FEB did find the applicant
recklessly endangered the lives of ten Soldiers and approximately $4
million dollars of United States Army property and adversely impacted the
United States mission in Iraq; however, his actions did not result in the
creation of a new adversary consisting of 3,000 rioters.
10.  On 7 September 2003, the FEB finally recommended that the orders
suspending the applicant from flying be rescinded and that he be restored
to aviation service.  The FEB further recommended that the applicant’s
pilot in command and instructor pilot orders be rescinded and that he be
restricted from performing such duties for a period of no less than six
months, in order to facilitate training to improve competency in the areas
of the Army Risk Management Process, aircrew coordination, the decision
making process and good judgment.

11.  On 17 September 2003, the command judge advocate general (JAG)
reviewing officer conducted a legal review of the FEB findings and
recommendations.  He found the proceedings substantially complied with
legal requirements and there were no procedural errors or irregularities
that invalidated the proceedings.  The command JAG reviewing officer also
concluded that sufficient evidence supported the FEB’s findings; and that
the FEB recommendations were consistent with the findings and fell within
the scope of the governing regulation.

12.  On 20 September 2003, the FEB appointing authority disapproved the
findings and recommendations of the FEB after concluding they were
inconsistent with the preponderance of proof contained in the evidence
binder.  He found the FEB was in error by applying an evidentiary standard
of beyond a reasonable doubt, when the appropriate standard was
preponderance of the evidence.

13.  The appointing authority further found the applicant recklessly
endangered the lives of ten Soldiers, fifty or more civilians, and
approximately four million dollars of United States Army property.  He
further concluded the applicant flagrantly violated flying regulations and
accident and safety regulations that prohibited engaging in unnecessary
risk; that he exercised poor judgment and demonstrated he lacked the
maturity, situational awareness and aviator skills to identify unnecessary
risk; that his actions adversely impacted the mission in Iraq by causing a
riot of three thousand or more people; and that he demonstrated a severe
lack of integrity by making three different official statements during the
course of the investigation.
14.  The appointing authority recommended that the applicant be
disqualified from aviation service and commented that Army pilots must have
sound judgment, must be trustworthy, and must have mature character to do
what is right even when no one is looking.  He stated that the applicant
showed a severe lack of judgment and a severe lack of integrity and
although this was a single incident of extremely poor judgment, risking the
lives of ten Soldiers so unnecessarily was egregious enough to warrant the
recommended action.  He concluded by stating he was very concerned by the
applicant’s lack of integrity and that the applicant had lost his trust.

15.  On 27 September 2003, the applicant’s military defense counsel
submitted a rebuttal to the appointing authority’s disapproval of the FEB
on behalf of the applicant.  Military counsel requested that the appointing
authority approve the FEB findings and recommendations, which were based on
a thorough and complete understanding of the evidence and which were
without legal error.

16.  In his rebuttal, defense counsel respectfully disagreed with the
findings of the appointing authority and addressed each individually.  He
also argued that the applicant admitted to putting the aircraft, crew and
passengers at risk and this was considered by the FEB when it recommended
the applicant’s flying privileges be restored.  Counsel further pointed out
that it should be noted the action to remove the flag was taken at the
direction of the ground commander.  Counsel further stated that the
question was not just risk, as all combat operations inherently place
Soldiers at risk.  The question instead was unnecessary risk, and the
ground commander’s influence must play a part in this analysis.  Counsel
further argued that the passengers on the aircraft were not just being
shuttled from place to place, they were in fact part of the ground
commander’s security force and were on board to provide security for the
aircraft and crew.

17.  Defense counsel finally pointed out that the only reason the applicant
was brought before the FEB was to determine if he had committed a flagrant
violation of flying regulations, as indicated in the FEB appointment
memorandum.  The FEB analyzed voluminous regulations and could find none
that the applicant flagrantly violated.  Further, the FEB governing
regulation states that it takes more than a simple violation of flying
regulations to disqualify an aviator from his duties.  The violation must
be blatant, obvious and deliberate.  Counsel stated that the FEB heard from
only one witness that believed there was a flagrant violation of the risk
management regulation, while hearing from seven experienced aviators who
stated there was no flagrant violation of flying regulations.

18.  On 29 September 2003, the applicant’s military defense counsel
submitted a request for approval of the FEB recommendations to the
commander,
1st Armored Division, the reviewing authority.  In this statement, he
restated the argument he had presented in his 27 September 2003 memorandum
to the FEB appointing authority.  Counsel indicated that the appointing
authority’s substituted findings and recommendations were misguided and
misleading and provided his explanation to support this statement.

19.  On 16 October 2003, the commander of the 1st Armored Division approved
the brigade commander’s findings and recommendations, and directed the
applicant be disqualified from aviation service.

20.  Army Regulation 600-105 sets policies, responsibilities, and
procedures for qualifying, disqualifying, and requalifying officers for
aviation service.  Chapter 6 contains guidance on FEBs.  It 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.   The regulation establishes eight reasons
for an FEB to convene.  The applicable reason in this case is a flagrant
violation of flying regulations that shows a lack of judgment or
proficiency that renders the officer unfit or unqualified to perform flying
duties.

DISCUSSION AND CONCLUSIONS:

1.  The contentions of the applicant and counsel that the applicant’s
removal from flight status was unjust was carefully considered and found to
have merit.  The evidence of record confirms that as a result of an AR 15-6
investigation into an incident in which he was involved, the applicant was
referred to a FEB in order for a determination to be made regarding whether
he flagrantly violated flying regulations during the incident.

2.  The AR 15-6 investigation found the actions of the aircraft crew to
attempt to remove a flag from the tower was taken as a result of a decision
by the ground commander on board the aircraft.  Based on the results of
this investigation, the ground commander was relieved of his command and
the applicant was referred to an FEB for a determination on whether he
flagrantly violated flying regulations.
3.  In this case, the applicable regulatory criteria supporting an FEB
evaluation was to determine if the applicant committed a flagrant violation
of flying regulations that showed a lack of judgment or proficiency that
rendered him unfit or unqualified to perform flying duties.  It was not
within the regulatory defined purview of the FEB to render decisions in
regard to appropriate punishment for non-flight related conduct issues.

4.  The evidence of record further shows that after a thorough and fair
evaluation of this case, the FEB found the applicant had not flagrantly
violated flight, safety or accident prevention regulations, and that the
act in question did not show he lacked judgment to a degree that rendered
him unfit or unqualified for flying duties.  Based on its findings, the FEB
recommended the applicant’s restoration to aviation service.  A legal
review of the FEB findings by a representative of the command JAG’s office
found the FEB findings and recommendations were legally sufficient and that
there was sufficient evidence to support them.

5.  The FEB summary confirms that seven of eight Army aviators testified
that they did not find the applicant flagrantly violated flying
regulations.  Further, the FEB findings were determined to be legally
sufficient and supported by the evidence by a command JAG reviewing
officer.  As a result, it appears the FEB findings and recommendations were
supported by a preponderance of the evidence.  Therefore, it is concluded
that the appointing authority’s decision not to approve the FEB findings
and recommendations was inappropriate.

6.  The reasons and motives of the FEB appointing authority are not in
question.  He obviously felt he had a logical basis for his disapproval of
the FEB findings and recommendations given the events that resulted from
the incident in question.  However, if the applicant’s actions were so
egregious as to rise to the level of misconduct, it would have been more
appropriate to deal with that situation through some form of administrative
or UCMJ action.  The jurisdiction of the FEB was limited to a determination
of whether the applicant committed a flagrant violation of flying
regulations and was not a proper venue to deal with conduct related issues.
 Although the FEB found the applicant recklessly endangered his crew and
aircraft, it apparently determined this was an isolated incident that did
not undermine his pilot classification.

7.  In view of the facts of this case, it would be appropriate to correct
the applicant’s record to show the FEB findings and recommendations were
approved and that the orders suspending the applicant from flying were
rescinded on 7 September 2003 and that he was restored to aviation service
that same date.  Further, all documents related to the disapproval of the
FEB should be removed from the applicant’s record.

8.  In addition, the applicant should be provided all back flight pay and
allowances he would have earned had he been restored to flying duties on
7 September 2003.  The remaining recommendations of the FEB in regard to
rescinding the applicant’s pilot in command and instructor pilot orders
will remain in effect until the proper authority confirms the applicant has
completed training to improve his competency in the areas of the Army Risk
Management Process, aircrew coordination, the decision making process and
good judgment, as recommended by the FEB.  Further, his actual return to
flight duties is contingent on his meeting all regulatory physical, and on
his being certified by the appropriate aviation officials.

BOARD VOTE:

___FE_ _  ___TEO _  __MJNT_  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief.  As a result, the Board recommends
that all Department of the Army records be corrected by showing that the
findings and recommendations of the 7 September 2003 Flight Evaluation
Board pertaining to the individual concerned were approved; by removing all
documents relating to the disapproval of the Flight Evaluation Board from
his records; and by providing him any back flight pay and allowances he
would have earned had he been reinstated to aviation service on 7 September
2003.

2.  The actual return to flight duties by the individual concerned is
contingent on his meeting all regulatory physical and metal requirements,
and on his being certified by the appropriate aviation officials.




            ____Fred Eichorn_______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004103203                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-06-02                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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