RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 September 2007
      DOCKET NUMBER:  AR20070009837


      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             |
|     |Ms. Loretta D. Gulley             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Larry C. Bergquist            |     |Chairperson          |
|     |Ms. Marla J.N.Troup               |     |Member               |
|     |Ms. Ernestine I Fields            |     |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 states, in effect, that the Chief of Staff of the Army
(CSA) disapproved his Exception to Policy (ETP) for his Aviation Career
Improvement Act (ACIA) Waiver.

2.  The applicant states, in effect, that he will not be able to meet the
96 month requirement for Total Operational Flying Duty Credit (TOFDC) by
March 2008, his 12 year aviation service mark.  He also states that he had
two assignments that did not earn TOFDC credit.  The first time was to
attend the Engineer Advanced Course and during his current assignment to
Fort Leavenworth, Kansas, against a ground requirement position. The
applicant concludes that since he will be 3 months short of his 96 month
requirement he should receive a one time waiver for TOFDC because of his
assignment to Fort Leavenworth, Kansas in a “needs of the service”
position.

3.  The applicant submitted the following documents in support of his
applications:  Orders Number L103-28, Headquarters III Corps and Fort Hood,
dated 12 April 2000, Orders Number 296-403, Headquarters 101st Airborne
Division (Air Assault) and Fort Campbell, dated 22 October 2004, a
memorandum and worksheet from U.S. Army Human Resources Command, dated 7
February 2007, subject:  Audit of TOFDC; a memorandum from the applicant,
dated 20 February 2007, requesting a waiver for ACIA; a memorandum from
U.S. Human Command, dated 2 March 2007, subject:  Request for an ETP for
the ACIA for the applicant; and a memorandum from U.S. Army Human Resources
Command, dated 2 July 2007, subject:  Request for an ETP for the ACIA
Waiver.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he initially entered
active duty in the grade of second lieutenant as an aviator effective 16
December 1995.

2.  Orders Number L103-28, Department of the Army, Headquarters III Corps
and Fort Hood, Fort Hood, Texas, dated 12 April 2000, ordered the applicant
to attend the Engineer Captains Career Course for a period of 20 weeks
beginning 4 August 2000 to 14 December 2000.  Item J of the orders state
that the applicant may not be assigned to a non-operational flying
requirement without the concurrence of PERSCOM TAPC-OPE-V.  Item J of the
order also state that the Officer is authorized to fly only if in a flying
status per The Authorization Document (TOE/TDA).
3.  Orders Number 296-403, Department of the Army, Headquarters 101st
Airborne Division (Air Assault) and Fort Campbell, dated 22 October 2004,
ordered the applicant to report to Fort Leavenworth, Kansas, on
1 December 2004.  Item H of the applicant’s order stated that he is
assigned against a ground requirement and may not be assigned to an
operational flying requirement without the concurrence of AHRC-OPA-V.  This
is due to the “needs of the service” and against his desires for a flying
assignment.  Item H of the order concluded by stating that the applicant
may apply for a one time waiver of TOFDC in accordance with AR 600-105
(Aviation Service of Rated Officers) as he attains a 12, 15, or 18 year
gate as appropriate.

4.  The memorandum from the U.S. Human Resources Command, Alexandria,
subject:  Audit of Total Operational Flying Duty Credit, dated 7 February
2007, states that a complete audit of the applicant’s TOFDC was conducted
in conjunction with his 12-year gate as outlined in paragraph 3-4, AR 600-
105.  The audit indicated that the applicant earned 93 months TOFDC and
therefore, did not meet his 12-year gate, and would no longer be entitled
to receive continuous Aviation Career Incentive Pay (ACIP) after 1 March
2008.  The memorandum stated that the applicant could still receive his
monthly ACIP assigned to an operational flying position as long as he
remained qualified for Aviation Service.  The enclosed audit shows that in
2000 the applicant received 6 months TOFDC, in 2001 he received 7 months
TOFDC and from 2005 to 2007 he received 0 months TOFDC for each year.

5.  A memorandum from the applicant to the Commander, U.S. Army Human
Resources Command, Alexandria, Virginia, requesting that he given an
Aviation Career Improvement Act (ACIA) waiver for the 12-year TOFDC because
he failed to meet the gate requirements due to “needs of the Army
assignments”.  The memorandum states that the reason the applicant failed
to meet the requirements was because he attended the Engineer Officer
Advanced Course and there were no slots available at the Aviator Officer
Advanced Course.  The memorandum also states that the applicant was
assigned for 20 months against a branch immaterial position at Fort
Leavenworth, Kansas.  The applicant finally states that he had no previous
waivers and has not voluntarily declined any operation flying assignments
or elected to take non-operational flight assignments that preclude TOFDC.






6.  A memorandum from the Chief, Aviation Officer, Career Management
Division Assignments Branch to the Deputy Chief of Staff, G1, Headquarters,
Department of the Army, Washington, DC, dated 2 March 2007, recommended
that the applicant’s request for an ETP for 32 months in non-operational
flying duty status assignments that do not meet the requirement of AR 600-
105 be granted and he be given a 3 month waiver.

7.  On 12 June 2007, the applicant was notified by the Chief, Incentives
Pay Branch, U.S. Army Human Resources Command, Alexandria, Virginia, that
the Secretary of the Army had disapproved his request for a waiver for
failure to meet his 12 year gate.

8.  Army Regulation 600-105 (Aviation Service of Rated Army Officers)
Chapter
3-7(a), in pertinent part, states that to receive credit for TOFDC an
aviator must be in aviation service, assigned to a position coded for
operational flying on the unit’s MTOE or TDA, and meet flying requirements.


9.  AR 600-105, Paragraph 3-8, in pertinent part, states that PERSCOM and
Full Time Support Management Center will attempt to manage an officer’s
aviation career assignment to meet gate requirements.  Based on the needs
of the Army, aviation officers may fail to meet the TOFDC gate
requirements, but they will be eligible for a waiver as outlined in this
regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the CSA disapproved his ETP for an ACIA
waiver.

2.  The evidence of record shows that the applicant was assigned to a
nonaviation school while attending the Engineer Advanced Course at Fort
Leonard Wood, Missouri, from August 2000 through December 2000 and that the
applicant choose to stay an additional 6 months at Fort Leonard Wood in
order to complete his masters program from January 2001 through May 2001.
Therefore, he is not entitled to an ETP for an ACIA waiver.

3.  The evidence of record shows that the applicant was not assigned to a
position that was coded for operational flying on the unit’s MTOE or TDA,
during his tour at Fort Leavenworth, Kansas.  Therefore, he is not entitled
to an ETP for an ACIA waiver.

4.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

_____ __  ______ __  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LCB__  _MJNT_  ___EIF___   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.




                                  ____Larry C. Bergquist____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070009837                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/09/11                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]