IN THE CASE OF:	  

	BOARD DATE:	  29 May 2008

	DOCKET NUMBER:  AR20080000829 


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, reimbursement of $16,380.00 worth of Aviation Career Incentive Pay (ACIP) that was recouped from his pay as a result of termination of his entitlement to ACIP.

2.  The applicant states, in effect, that he suffered a myocardial infarction and became medically unfit for aviation service on 27 July 2003, and that the notification of medical determination and termination of ACIP was made to the Minnesota Army National Guard (MNARNG) on 3 May 2006.  Meanwhile, he continued to collect ACIP.  He further adds that, on 3 July 2006, the National Guard Bureau (NGB) terminated his ACIP entitlement, effective 27 July 2004, as required by governing regulations.  Accordingly, recoupment of ACIP began in September 2006 at the rate of $983.00 a month and was completed in January 2008.  He concludes that he agrees with the termination of ACIP and made every effort to have it terminated, but believes the financial burden imposed upon his family by this bureaucratic inefficiency is unfair.  

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Special Orders 322 R, NGB, dated 30 December 2004, Branch Change from Aviation to Ordnance.

	b.  Memorandum, MNARNG, dated 5 October 2004, Flight Pay Entitlement.

	c.  DA Form 3349 (Physical Profile), dated 29 July 2005.

	d.  Memorandum, Headquarters, U.S. Army Aeromedical Center (USAAMC), Fort Rucker, Alabama (AL), dated 6 February 2006, Recommendation for Medical Disqualification.

	e.  Memoranda, NGB, dated 3 May 2006, Recommendation for Medical Disqualification.

	f.  Orders 123-2, NGB, dated 3 May 2006, Termination of Entitlement to ACIP.

	g.  Applicant's memorandum, dated 10 July 2006, requesting termination of ACIP.

	h.  Memoranda, MNARNG, dated 10 July 2006 and 5 September 2006, Approval of Termination of ACIP.

	i.  Electronic mail (email) exchange between the applicant and his unit's Compensation Noncommissioned Officer (NCO), dated on miscellaneous dates.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he was commissioned as a second lieutenant in the Aviation Corps of the U.S. Army Reserve on 7 June 1987.  He completed the Aviation Basic Officer Course and was subsequently released from the USAR Control Group (Annual Training) and assigned to the Washington Army National Guard (WAARNG).  His records further show that he also served with the Oregon Army National Guard (ORARNG)

2.  On 6 August 1997, the applicant was transferred to the MNARNG and was assigned to various commands and staff positions within the MNARNG.  He was assigned to the 3rd Battalion, 147th Aviation (Attack Helicopter), St. Paul, Minnesota. 

3.  On 5 October 2004, by memorandum, the applicant's operations officer notified the unit commander that the applicant's flight pay entitlement was temporarily medically suspended on 28 July 2003 and that, without a waiver, the applicant's medical suspension became an aeromedical disqualification on 
28 July 2004.  The operations officer further added that, in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and Army Regulation 600-105 (Aviation Service of Rated Army Officers), flight status was automatically suspended, effective 29 July 2004 and that upon suspension of flight status, termination of ACIP was mandatory.  

4.  On 4 October 2004, the applicant requested a branch transfer and functional area designation from the Aviation Corps into the Ordnance Corps, effective 15 December 2004.  

5.  On 15 December 2004, a Federal Recognition Board was held by the MNARNG to determine if the applicant was qualified to be awarded Federal recognition for a branch transfer.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications. 

6.  On 21 December 2004, MNARNG, published Orders 356-800, announcing the applicant's branch transfer into the Ordnance Corps. 

7.  On 29 July 2005, the applicant was issued a permanent physical profile for myocardial infraction/heart attack.

8.  On 6 February 2006, by memorandum, the Director, USAAMC, Fort Rucker, AL, notified the Chief, NGB, that the applicant did not meet the medical fitness of Class 2 flying duties due to a history of inferior Myocardial Infarction.  He further added that the medical staff at the USAAMC thoroughly reviewed all the clinical records submitted and that, after careful deliberation, the medical staff concluded that the applicant's condition was not compatible with the operational requirement of the Army Aviation.  As such, the Director recommended the applicant's medical disqualification from further flying aviation service.

9.  On 3 May 2006, by memorandum, the Chief, Aviation and Safety Division, NGB, notified the MNARNG State Aviation Officer, that, based on the USAAMC Director's recommendation, the applicant's medical disqualification was approved and that his aviation service would be terminated effective 27 July 2004.

10.  On 3 May 2006, by memorandum, the Chief, Aviation and Safety Division, notified the applicant that he did not meet the qualifications of Class 2 flying duties and that orders terminating his aviation service were issued with an effective date of 27 July 2004.

11.  On 3 May 2006, the National Guard Bureau published Orders 123-2 terminating the applicant's ACIP, effective 27 July 2004, due to medical reasons, in accordance with Army Regulation 600-105.

12.  On 10 July 2006, by memorandum addressed to the MNARNG, the applicant requested termination of his ACIP effective 1 August 2006, citing paragraph 22020, chapter 27, Volume 7A of the Department of Defense (DOD) Financial Management Regulation, which states that "an officer who is medically incapacitated shall be considered qualified for aviation service until such time he or she is disqualified from aviation service.  Disqualification for medical incapacity will be affected on the first day following a period of 365 days that commences on the date of incapacitation."  The applicant further added that final determination was made by a competent medical authority on 29 July 2005 and that he had been trying to stop his ACIP since receiving the notification memorandum on 3 May 2006.

13.  On 10 July 2006, by memorandum addressed to the MNARNG State Army Aviation Officer, the MNARNG Chief of Human Resources recommended the applicant's termination date be effective on the date of branch transfer by stating that the applicant was medically incapacitated on 27 July 2004 and was transferred out of the Aviation Branch on 15 December 2004.  

14.  On 5 September 2006, the MNARNG State Army Aviation Officer concurred with the MNARNG Chief of Human Resources to terminate the applicant's ACIP effective 15 December 2004.  He also stated that aviation career incentive pay and operational flying duty credit may not be authorized for any period during which an officer is disqualified for aviation.

15.  Subsequent to this decision, an exchange of emails took place between the applicant and his Compensation NCO, regarding a payment plan of the $16,380.00 of ACIP overpayment.  Furthermore, the applicant's servicing military pay office began the recoupment of $983 per month, in November 2006.  Recoupment was completed in October 2007.

16.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau, Arlington, VA.  This official recommended approval of the applicant's request to be reimbursed a portion of the ACIP collected by the Defense Finance and Accounting Service (DFAS) over the past 365 days (the effective date of termination should be adjusted from 27 July 2004 to 27 July 2005).  The official stated that this recommendation was based on the supporting documentation that shows the applicant was not at fault for the delay in termination of ACIP.



17.  On 30 April 2008, the applicant was provided a copy of the advisory opinion in order for him to have the opportunity to respond.  By email, dated 1 May 2005, the applicant concurred with the advisory opinion rendered in his case.

18.  Army Regulation 600-105 sets policies, responsibilities, and procedures for awarding Army aeronautical ratings; qualifying, disqualifying, and re-qualifying 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.  

19.  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.  

20.  Chapter 4 of Army Regulation 600-105 provides guidance on aeromedical disqualifications.  It states, in pertinent part, that an aeromedical disqualification exists when an officer does not meet the medical fitness standards for flying duties (AR 40–501 and Aeromedical Policy Letter Series).  The date of the aeromedical disqualification is the date of the aeromedical incapacitation is diagnosed by history, physical examination, or medical testing.  The date of aeromedical disqualification may not always correspond with the dates of local medical restriction from flying duties by a flight surgeon using DA Form 4186 (Medical Recommendation for Flying Duty) or the date a flight surgeon first evaluates the aeromedical incapacitation.  For the purpose of aeromedical disqualification, the immediate aviation commander is defined as the aviation unit commander or designated official who maintains the officer’s flight records.  Aeromedical disqualification requires (1) Temporary medical suspension; (2) Medical termination from aviation service; and (3) Qualification with an aeromedical waiver.




21.  Paragraph 4-4 of Army Regulation 600-105 states that medical termination from aviation service is required for aeromedical disqualifications that are not likely to result in medical requalification with or without an aeromedical waiver within 180 days.  For aviators and flight surgeons, medical termination from aviation service results in, among other things, the termination of continuous or monthly ACIP.  Furthermore, the Commander, USAAMC, will review the medical report and make the final recommendation of medical fitness for flight duty.  The USAAMC Commander will make his recommendation to either the Commander, Army Human Resources Command, the Office of the Surgeon general, or the National Guard Bureau, and recommend (1) the date of aeromedical incapacitation; and (2) the final aeromedical disposition such as qualification without a waiver or qualification with an aeromedical waiver; or medical termination from aviation service.  The National Guard Bureau (for ARNG Soldiers) will establish the date of medical termination from aviation service and publish an order disqualifying the officer.  Furthermore, the appropriate personnel career division will reclassify or rebranch the officer from aviation service if warranted.

22.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.





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.  Notwithstanding the advisory opinion provided by the Army National Guard, by regulation, members who are qualified for aviation service 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 July 2003.  The applicant was not removed from flight status at this time, and it was not until a further opinion was obtained and medical consultation completed, that a recommendation for his termination from flight status was made by competent medical authority.  

4.  The applicant was fully aware of his medical condition when it was diagnosed and accordingly, he requested a branch transfer from Aviation to Ordnance.  As a result of this disqualifying medical condition, the applicant’s ACIP was terminated by the National Guard Bureau, effective 27 July 2004.  

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, DFAS officials worked with the applicant regarding a repayment plan to alleviate any financial hardship to him and/or his family.  In effect, he has already received the benefit of an interest-free recoupment plan that benefited, rather than burdened, him and his family.  Thus, there appears to be no error or injustice related to the ACIP debt he incurred or the recoupment of that debt.  Therefore, the applicant is not entitled to relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



							XXX
       _    _______   ___
       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)                                         AR20080000829



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ABCMR Record of Proceedings (cont)                                         AR20080000829



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