RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 December 2007
	DOCKET NUMBER:  AR20070007081 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. John Slone

Chairperson

Ms. Marla J. N. Troup

Member

Mr. Thomas H. Ray

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 that U.S. Army Military Personnel Center Orders 
45-1 (Terminate aviation service and entitlement to Aviation Career Incentive Pay (ACIP)), dated 23 April 1985, be changed from "permanently disqualified" from aviation service to "disqualified" from aviation service as a result of a Flying Evaluation Board (FEB).

2.  The applicant states, in effect, that after the FEB made its finding the appointed authority made a decision to recommend disqualification from aviation service, not to permanently disqualify him.  The findings and recommendations were approved but the Staff Judge Advocate (SJA) erred during legal review and preparation of the final decision letter and added the word "permanently" in front of disqualified.  The document was signed by the approval authority which generated the orders that permanently disqualified the applicant from aviation service.

3.  The applicant provides a DA Form 1574 (Report of Proceeding by Investigating Officer/Board of Officers), dated 27 November 1984; a letter from Headquarters, Combat Aviation Brigade, 7th Infantry Division, dated 15 January 1985; DA Form 2496 (Disposition Form), dated 15 March 1985; pages 4-2 and
4-3 from Army Regulation 600-105 (Aviation Service of Rated Army Officers), dated 1 December 1983; a letter of support from the applicant's former Brigade Commander, dated 5 May 2007; U.S. Army Military Personnel Center Orders 
45-1, dated 23 April 1985; and his DD Form 214 (Certificate of Release or Discharge from Active Duty), with the ending period 31 October 1986.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  The applicant had prior enlisted service.  He was appointed as a Warrant Officer in the U.S. Army on 28 August 1979 and entered active duty that date.

3.  On 27 November 1984, members of an FEB recommended orders suspending the applicant (from flying duty) be rescinded and that he be restored to aviation service.  The appointed authority (Commander, Combat Aviation Brigade (CAB)) disapproved the findings to restore the applicant to aviation service and recommended that he be disqualified from aviation service.

4.  A letter, dated 15 January 1985, addressed to the applicant from the appointed authority states "As appointed authority exercising SPCM jurisdiction, I have elected to disapprove the Board's recommendation for restoration of your aviation service.  In substitution, my decision is to disqualify you from further aviation service."  The appointed authority further stated that the applicant and his legal counsel had the right to review his decision for disqualification and submit an appeal prior to final action.

5.  In a DA Form 2496, dated 15 March 1985, (a legal review from the SJA to the Commanding General of the 7th Infantry Division and Fort Ord, California), the SJA states "On 4 Feb 1985, COL C_______, Cdr, Combat Aviation Bde, the Appointing (sic) Authority, disapproved some of the findings and the board's recommendation for restoration of aviation service.  COL _______ determined that CW2 ______ should be disqualified for aviation service…."

6.  The SJA added the word "permanently" in his recommendation to the Commanding General.  He stated, "That you sign the letter at TAB A approving the findings and recommendations of Cdr, Combat Aviation Bde which permanently disqualifies (emphasis added) CW2 _______ from aviation service." The Commanding General approved the recommendation of the SJA.

7.  A letter, dated 27 March 1985, addressed to the applicant from the Commanding General states "The findings and recommendations of the Commander, Combat Aviation, 7th Infantry Division, concerning the Flight Evaluation Board of CW2 T______ are approved."  The Commanding General further stated that the applicant was permanently disqualified from aviation service.

8.  U.S. Army Military Personnel Center Orders 45-1, dated 23 April 1985, show that the applicant's aviation service and entitlement to ACIP was terminated effective 1 October 1984 as a result of a FEB action that permanently disqualified him from aviation service.

9.  On 31 October 1986, the applicant was released from active duty.
10.  The applicant submitted a letter of support from his former Brigade Commander, dated 5 May 2007.  The author stated "I determined that CW2 ______ be "disqualified" from aviation service.  At that time, I was aware that I had the option to "permanently disqualify" him.  I made an informed decision not to take the more harsh action."

11.  Army Regulation 600-105 (Aviation Service of Rated Army Officers), Chapter 4 contains procedures for convening and conducting an FEB.  Chapter 4 provides, in pertinent part, that the FEB will base its recommendations on the findings.  The findings will be reviewed for legal sufficiency by the servicing legal advisor before being submitted to the appointed authority.  The recommendations of an FEB are advisory and not binding.  The board is the first step in the evaluation process.  If the appointed or a higher reviewing authority believes disqualifying the officer is proper, the report will be sent through command channels to the next higher reviewing authority for review.  When all reviewers recommend disqualification, and when the FEB appointed authority believes disqualification or permanent disqualification is proper, final action will be taken by the approving authority.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the Commander, Combat Aviation Brigade recommended the applicant be disqualified from aviation service.  The SJA recommended disqualification from aviation service based on the Commander, Combat Aviation Brigade's recommendation.  However, when submitting his legal review and recommendations to the Commanding General, the approving authority, the word “permanently” was inadvertently added to the recommendation.  

2.  U.S. Army Military Personnel Center Orders 45-1, dated 23 April 1985 subsequently permanently disqualified the applicant from aviation service.  However, due to the SJA erroneously citing the Brigade Commander's recommendation to the Commanding General by adding the word “permanently” disqualified, this order should be corrected to delete the word “permanently” to show the applicant was disqualified (not permanently disqualified) from aviation service.







BOARD VOTE:

__JS          __MJNP_  ___THR _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that U.S. Army Military Personnel Center Orders 45-1, dated 23 April 1985, be corrected by amending subparagraph (a) of the Additional Instructions section as follows:

	a.  delete:  (a)  As a result of Flying Evaluation Board action, you have been permanently disqualified from aviation service; and

	b.  add:  (a)  As a result of Flying Evaluation Board action, you have been disqualified from aviation service.




_____ John Slone ___
          CHAIRPERSON




INDEX

CASE ID
AR20070007081
SUFFIX

RECON

DATE BOARDED
18 DECEMBER 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT 
REVIEW AUTHORITY
MR. SHATZER
ISSUES         1.
115.0200.0000
2.

3.

4.

5.

6.