IN THE CASE OF:	

	BOARD DATE:	  
	DOCKET NUMBER:  AR20070018461 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that National Guard Bureau (NGB) Orders Number 280-1, dated 7 October 2002, which terminated his aviation service and entitlement of aviation career incentive pay (ACIP), be rescinded; that he be restored to aviation service on the automated officer master file and on his officer record brief (ORB); and that NGB Orders Number 260-3, dated 17 September 1998, be amended to resume performance of aviation service with entitlement to ACIP.

2.  The applicant states, in effect, that the Flight Evaluation Board (FEB) proceedings were not followed in accordance with Army Regulation 600-105 or Army Regulation 15-6.  He states that illegal command influence was conducted toward the FEB proceedings.

3.  The applicant states, in effect, that the orders permanently grounding him should be rescinded for the following reasons:

      (a)  The FEB proceedings were not conducted in a timely manner in accordance with Army Regulation 600-105; 
      
      (b)  Army Regulation 600-105, Table 5-1, "Suspension Authority" states that the authority may impose a temporary suspension for up to 180 days.  Any extension requests must be made by the approving authority; and
      
      
      (c)  Army Regulation 600-105, paragraph 6-5, Time Phasing, states "the appointing authority will request an extension from the appropriate authority (table 3-5) when it is apparent that final action will not be completed within 6 months from the initial date of suspension."

4.  The applicant states that in November 1997, he was assigned to the 171st Aviation Battalion, Georgia Army National Guard (GAARNG).  He was hired in an Active Guard Reserve (AGR) position in the same unit in December 1998.  He successfully completed the UH-60 (Utility Helicopter) Blackhawk qualification course in 2000.  When he returned to his home unit, he began his readiness level training in the UH-60.  

5.  In March 2001, the applicant states he was administratively grounded pending an FEB due to failing an instrument check ride in the UH-60 in February 2001.  The FEB convened on 10 May 2001 and recommended that he receive 6 months additional training.  He was informed in February 2002 that a second FEB would convene on 16 March 2002.  The applicant was told that the first FEB was conducted in error and had been invalidated.  The second FEB recommended that he be permanently grounded from aviation service.  

6.  The applicant states that he was grounded for almost 19 months.  The total time grounded between the two FEBs was over 12 months.  The memorandum signed by the State Adjutant General (AG) invalidating the first FEB was dated 18 December 2001, 100 days passed the 6 months limit that he should have been grounded.  He was never informed nor furnished any memorandum extending his grounding of March 2001.  He was not given a chance to rebut the invalidation of the first FEB.  He states being that the memorandum invalidating the first FEB was not dated until 18 December 2001, well after the 6 months limit, an extension was never requested.  During the 6 months time period after the first FEB, he never received any flight training.  He was put off throughout that summer because he was told some errors had to be corrected before he could start training.  He concludes that between the two FEBs, he was never given any opportunity to train.

7.  The applicant provides several documents such as copies of his FEB, 1st and 2nd board, several copies of orders, and memorandums in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE

Counsel remains silent.


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's records show that he was appointed in the GAARNG as a second lieutenant (2LT/O-1), effective 13 June 1986, with prior enlisted service, in the Armor Branch.  

3.  The applicant was promoted to captain (CPT/O-3) effective 20 October 1994. 

4.  On 1 November 1997, the applicant was assigned to HHC (Headquarters and Headquarters Company), 1st Battalion, 171st Aviation Regiment, GAARNG. 

5.  On 17 September 1998, orders were published by the NGB putting the applicant on flight status as an Army Aviator and entitling him to ACIP with an effective date of 29 August 1998.

6.  On 17 December 1998, the applicant was transferred from the Armor branch to the Aviation branch.

7.  The applicant was assigned to an AGR position in December 1998.  

8.  The applicant successfully completed the UH-60 Blackhawk qualification course on 18 August 2000.  

9.  On 22  March 2001, the Commander, 1st Battalion, 171st Aviation Regiment, Dobbins Air Reserve Base, Georgia, prepared a memorandum for the State Adjutant General (AG), Subject:  5 Month Temporary Flight Suspension.  The commander requested an additional 5 month temporary flight suspension for the applicant.  The extension was required to allow time for an FEB to convene to determine the applicant’s potential continued aviation service.  On 9 March 2001, he was temporarily suspended from flight duties for 30 days in accordance with 
Army Regulation 600-105, paragraph 5-3c.  His reason for suspension was, "due to lack of proficiency in flying duties."  The Commander stated he had requested that an FEB be convened as expeditiously as possible to resolve this matter in a separate memorandum.  

10.  On 3 May 2001, the applicant was notified to appear before an FEB to evaluate his potential for continued aviation service.  He acknowledged receipt on the same day.

11.  On 10 May 2001, the applicant appeared before an FEB with counsel.  The FEB found that the applicant demonstrated a lack of proficiency in flying duties caused by his failure to timely progress to RL2 (readiness level two).  The FEB found that he was qualified for aviation service.  The FEB recommended the applicant's disqualification from flying be rescinded and that he be requalified for aviation service.  This was a unanimous decision.  The president of the FEB stated that he was not sure that the FEB was presented the opportunity to do what the specific task was, and that was to determine his potential for future aviation service.  Due to the records mismanagement and possibility that training continuity and some other factors, he did not think they could do a very good job of that.  The president stated that the applicant would have 90 days to progress, and within those 90 days, he would wind up being the applicant's battalion commander.  He warned him that he would not get a 30 day extension.  The president stated that they could be right back here in 90 days along with the board members, but he would assure him that he would have the opportunity to progress; but outside of AT (annual training).  He would expect him to do that.  They would expect him to do that like other aviators and not take time away from his AGR duties; that he would do that as an in-day Soldier, like the rest of them do.  The FEB was then adjourned.

12.  On 18 December 2001, the State AG reviewed the proceedings of the FEB which was conducted to determine the professional qualification and potential for continued aviation service of the applicant.  The State AG determined that the FEB was not appointed in accordance with Army Regulation 600-105.  Accordingly, he referred the matter to a new FEB entirely composed of new voting members.  The State AG advised he would appoint the members of the new FEB.

13.  On 11 March 2002, the applicant was notified of the FEB action.  He was summoned, in effect, to appear before a new board, to evaluate his potential for continued aviation service.  He was informed that he could be represented by counsel and to have counsel present with him at all sessions of the board.  He acknowledged receipt on the same day.


14.  On 16 March 2002, the applicant appeared before a newly constituted FEB with counsel.  The FEB found that the applicant had demonstrated a lack of proficiency in flying duties, that he be disqualified from aviation service, and that he had marginal potential for continued aviation service.  The FEB recommended that the applicant be disqualified from aviation service.   

15.  On 7 October 2002, the Chief, Aviation & Safety Division, NGB, prepared a memorandum for the State AG, Subject:  FEB.  The Chief, Aviation & Safety Division stated that the FEB proceedings had been reviewed and were approved. According to AR 600-105 "Officers having marginal potential for continued aviation service should be recommended for disqualification."  The staff of the Aviation & Safety Division supported this action.  He was permanently disqualified from further aviation service.  

16.  On 7 October 2002, Orders Number 280-1 were published by the NGB, terminating the applicant’s aviation service and entitlement to ACIP with an effective date of 9 March 2001. 

17.  On 5 December 2002, the Commander, GAARNG,1st Aviation Group (Provisional), prepared a memorandum for the applicant, Subject:  Proposed Notice of Involuntary Separation.  The commander stated that based on a review of the memorandum, dated 7 October 2002, the NGB, Chief, Aviation and Safety Division, had approved the FEB findings and recommendation.  He stated that the applicant had marginal potential for continued aviation service and in accordance with Army Regulation 600-105, recommended permanent disqualification from aviation service.  The applicant was notified that the commander proposed to involuntarily separate him from his AGR status due to a loss of his aviation qualifications which were required for his position in the organization.  He was authorized to submit a rebuttal and that his rebuttal must be received by
20 December 2002.  He was authorized to receive counsel in assisting him in preparing his rebuttal and he was given the opportunity to request voluntary release in lieu of involuntary separation.  The applicant acknowledged the notice on the same date.

18.  On 20 December 2002, the applicant's military and civil counsel submitted an appeal, with supporting documents.  In the appeal, they cited failures by the board to comply with established suspense dates in the applicable regulation which precluded the applicant from continuing with his training for an inordinately long time, a change in the training plan that was prepared by his instructor that failed to incorporate the first board's findings and recommendation, and concluded that by the weight of the evidence, in accordance with the procedures of Army Regulation 15-6 and Army Regulation 600-105, and in the best of 

interest of the Army, the appellate authority should reverse the approving authority and adopt the findings and recommendation of the first FEB by reinstating the applicant to flying duties with instructions for additional training.

19.  On 10 January 2003, the applicant submitted a rebuttal to the proposed involuntary separation action.  He stated that his termination orders were still being contested through appeal and that he was still qualified for continued AGR service in the GAARNG.  He elaborated on his current duty position and performance over the last 5 years.  He stated that he had successfully completed his initial tour and was currently serving on his present indefinite tour.  He was qualified in two branches and successfully completed the Advance Course, CASIII, and had been DA Selected to the rank of Major for the last 2 years.

20.  On 31 January 2003, one of the FEB board members prepared a witness statement for the applicant’s counsel.  He elaborated on the events that occurred during the FEB on 10 May 2001.  The Witness Statement was not signed by the officer making the statement due to his deployment overseas; however, it was signed by applicant's present counsel.

21.  On 29 November 2004, the Chief, Aviation and Safety Division, NGB, informed the Chief of Staff, GAARNG, that the FEB proceedings pertaining to the applicant were complete and were in the process of being returned to his state.  It was found that the appeal contained no additional evidence or new unexpected circumstances that would support a reversal of the FEB's recommendation.  The applicant had requested a delay in processing to allow for the submission of new evidence, but no new evidence was forwarded and the applicant now states that no additional information would be submitted.  The previously issued orders for permanent disqualification would remain in effect.

22.  On 14 January 2005, a Member of Congress (MOC) received a response from the NGB regarding an inquiry that was made on the applicant's behalf.  The MOC informed the applicant that he was sorry that their decision was not more favorable; but, his staff had done everything they could as advocates for his position; however, the NGB informed them they could not render a favorable decision in his case.

23.  The applicant provided a copy of his Report of Medical Examination, dated 11 April 2007, which indicated that he was qualified for Class 2 flying duties.

24.  Army Regulation 600-105 covers the aviation service policies of rated Army officers and flight surgeons.  It applies to Active Army and Reserve Component officers and warrant officers (Army National Guard and United States Army 
Reserve) ordered into aviation service by the Secretary of the Army.  It also applies to all commissioned and warrant officer who are training or have Army aeronautical ratings.

25.  Chapter 5, of the same regulation, pertains to nonmedical disqualification.  Table 5-1 states, in pertinent part, any commander in the chain of command may impose and remove a temporary suspension for up to 30 days.  The approving authority, such as the Chief, NGB (CNGB), may appoint an FEB and impose a temporary suspension for up to 180 days.  The suspension runs concurrent with any 30 days suspension already imposed.  If final fitness has not been determined by the end of the 180 days, the appointing authority my request an extension from the approving authority or in the case of ARNGUS (ARNG United States) aviators from the CNGB.  The request will include the reason for delay and the expected completion date.

26.  Chapter 6, of the same regulation, pertains to the FEB.  Paragraph 6-1 pertains to standards.  It states that each officer authorized to pilot a military aircraft or perform crewmember duties must maintain the highest professional standards.  When an officer's performance is doubtful, justification for continued aviation service or authorization to pilot Army aircraft is subject to a complete review.  An FEB should convene if an officer:  (a) fails to remain professionally qualified; (b) has marginal potential for continued aviation service; and (c) is currently nonmedically disqualified for aviation service and meets the provisions for requalification.  

27.  An FEB may be appointed by officers holding 180-day suspension authority. An FEB would be convened for reason such as lack of proficiency.  Evidence that shows the officer:  (a) lacked proficiency in flying duties; (b) failed to meet ATP (Aircraft Type Training) requirements (proficiency, flying hour task iterations and APART (Annual Proficiency and Readiness Test)), unless waived; and (c) failed to maintain a current instrument qualification unless exempt or waived under the proper regulation or aircrew training manual (does not apply to flight surgeons).

28.  Paragraph 6-3, of the same Regulation, pertains to procedures.  It states that the objective of the FEB is to ensure that all information relevant to a person's qualifications is presented and that the proceedings are objectively evaluated.  The FEB receives exhibits and hears testimony in open session, witnesses are sworn in and subject to cross examination, and the respondent may be represented by counsel.  The formal board shall be held according to Army regulation 15-6.  The FEB shall base its recommendations on the findings.  Recommendations must clearly and logically address the respondent’s potential for service as an officer in active flying service.  The findings would be reviewed for legal sufficiency by the serving legal 

advisor before being submitted to the appointing authority.  Recommendations shall be made using the following guideline:  (a) recommendations to disqualify an officer are normally not made on the basis of an isolated incident or action; however, if an officer clearly shows a dangerous or an unacceptable change in pattern of performance, disqualification should be recommended; (b) the board must consider the officer's ability and potential to perform basic military flying duties and, when applicable, the potential for more complex skills after more training and flying experience; (c) officers having marginal potential for continued aviation service should be recommended for disqualification; and (d) in the final analysis, the best interest of the Army remains the prime criterion in evaluating each case.  When the appointing or a higher reviewing authority believes disqualifying the officer is proper, the report would be sent through command channels to the next higher reviewing authority for review.

29.  Paragraph 6-5, of the same Regulation, states that FEBs shall be processed according to the following conditions: (a) the president of the FEB must convene the FEB within 30 days of their appointment; (b) the president of the FEB should complete and send a report of the proceeding to the appointing authority within 30 days from the convening date; (c) the respondent or respondent’s counsel will have 10 days from receiving the report proceedings to review them and submit a brief to the appointing authority; (d) the appointing authority must take final action on the case or send a report of the proceedings to the next higher reviewing authority within 15 days; (e) the respondent or respondent’s counsel has 60 days following the notice of final action (from the approving authority) in which to file an appeal; and (f) the appointing authority will request an extension from the appropriate authority (table 3-5) when it is apparent that final action will not be completed within 6 months from the initial date of suspension.

30.  Army Regulation 15-6 governs procedures for investigating officers and boards of officers.  It establishes procedures for investigations and boards of officers not specifically authorized by other directives.

31.  Chapter 2 of the regulation pertains to the responsibilities of the appointing authority and covers the action of the appointing authority.  Subparagraph 2-3c pertains to the effects of errors.  Generally, procedural errors or irregularities in an investigation or board do not invalidate the proceedings of any action based on it.

32.  Subparagraph 2-3c(2) pertains to appointing errors.  It states that where an investigation is convened or directed by an official without the authority to do so, the proceeding are a nullity, unless an official with the authority to appoint such an investigation or board subsequently ratifies the appointment.  Where a formal board is convened by an official authority to convene an informal investigation or board but not authorized to convene formal investigations, any action not requiring a formal investigation may be taken.
33.  Subparagraph 2-3c(3) pertains to substantial errors.  It states in case of an error that cannot be corrected otherwise, the appointing authority, may set aside all findings and recommendation and refer the entire case to a new investigating officer or board composed entirely of new voting members.  Alternatively, the appointing authority may take action on findings and recommendation not affected by the error, set aside the affected findings and recommendation, and refer the affected portion of the case to a new investigating officer or board.  In either case, the new investigating officer or board may be furnished any evidence properly considered by the previous one.  The new investigating officer or board may also consider additional evidence.  If the directive under which a board is appointed provides that the appointing authority may not take less favorable action than the board recommends, the appointing authority’s action is limited by the original recommendations even though the case subsequently is referred to a new board which recommends less favorable action.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that orders were published by the NGB assigning the applicant to flying duties with entitlement to ACIP, effective 29 August 1998.  He was assigned to an AGR position and successfully completed the UH-60 Blackhawk Qualification course in 2000.  

2.  The applicant failed an instrument check ride in the UH-60 in February 2001.  He was temporarily suspended from flight duties on 9 March 2001 due to a lack of proficiency in flying duties.  The commander requested that an FEB be convened as expeditiously as possible to resolve the matter.  He requested an additional 5 month temporary flight suspension to allow time for an FEB to convene to determine the applicant's potential for continued aviation service.

3.  The applicant appeared before an FEB on 10 May 2001 which found that he had demonstrated a lack of proficiency in flying duties cause by his failure to timely progress to RL2.  He was disqualified for aviation service.  The FEB recommended the applicant's disqualification from flying be rescinded and that he be requalified for aviation service.

4.  The proceedings were reviewed by the State AG who determined that FEB was not appointed in accordance with regulatory authority and requested a new FEB.

5.  The applicant appeared before a second FEB, with counsel, on 16 March 2002.  The FEB found that he had demonstrated a lack of proficiency in flying duties, that he had marginal potential for continued aviation service, and 
recommended that he be disqualified from aviation service.  Orders were published terminating his aviation service and entitlement to ACIP, effective 9 March 2001.

6.  The Chief, Aviation & Safety Division, NGB, approved the FEB findings and the applicant was permanently disqualified from further aviation service.  The commander proposed to involuntarily separate the applicant from AGR status due to a loss of his aviation qualifications which were required for his position in the organization.

7.  The applicant was notified of the proposed involuntary separation and was informed that he could appeal.  He deferred to his counsel who appealed the decision and requested that the appellate authority reverse the approving authority's decision and adopt the findings and recommendations of the first FEB and reinstate the applicant to flying duties with additional training.  The applicant rebutted and stated that he was still qualified for continued AGR service.

8.  The NGB informed the Chief of Staff, GAARNG, that the proceedings were complete and that they would be returned to his State.  It was found that the appeal contained no additional evidence or new unexpected circumstances to support a reversal of the FEB's recommendation.  No addition evidence was presented by the applicant as he had indicated he would submit and the previously issued orders for permanent disqualification would remain in effect.

9.  The applicant has failed to show that he was unjustly terminated from aviation service and ACIP.  

10.  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

___x____  ___x____  ____x___  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.



      __________x_____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.





























ABCMR Record of Proceedings (cont)                                         AR20070018461



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ABCMR Record of Proceedings (cont)                                         AR20070018461



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