IN THE CASE OF:	  

		BOARD DATE:	  25 June 2009

		DOCKET NUMBER:  AR20080011488 


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:

	a.  Recognition of sufficient Total Operational Flying Duty Credit (TOFDC) to, in effect, qualify for his 18-year gate and for Aviation Career Incentive Pay (ACIP) as of August 2005, or in the alternative, require the Incentive Pay Branch (IPB), US Army Human Resources Command (HRC), Alexandria, VA, to produce Modified Tables of Organization and Equipment/Tables of Distribution and Allowances (MTOE/TDA) for all of his officer assignments.

	b.  Removal of Pilot Status Code (PSC) 3 (Grounded Due to Non-Medical Reasons) from his records, specifically from his Officer Record Brief (ORB), or in the alternative, require IPB to “show cause” for his “clandestine removal” from aviation service.

	c.  Request reversal of the 25 August 2005 denial by the Secretary of the Army (SA) of his “Request for Waiver of Total Operational Flying Duty Credit.”

2.  The applicant states, in effect, his flight records and assignments support his contention that he achieved sufficient TOFDC to qualify for continuous ACIP beyond his 18th year of aviation service.  He also indicates the US Army Reserve Command (USARC) failed to transfer his personnel, medical, and flight records to the HRC when he re-entered active duty following 11 September 2001.  IPB thus repeatedly denied the appropriate level of TOFDC because that office relied on ORBs, not flight records, and the ORBs did not contain magic phrases to show he “wiggled the stick” (i.e., the cyclic stick control).  He adds, after protracted disagreements with IPB, that office became disenchanted with him and purposely set about to thwart his attempts to achieve his 18-year gate and, by unceremonious and flippant actions, removed him from aviation status by placing a PSC 3 on his ORB.  Finally, when he applied to the SA for a TOFDC waiver, the IPB reported incorrect data to the SA which led to a denial of his request.

3.  The applicant provides:

	a.  A 10 July 2008 memorandum in which he alleges, in effect, IPB has denied him TOFDC out of personal animus.  He further alleges that IPB provided the SA false documentation upon which the Secretary relied in denying his request for a TOFDC waiver.

	b.  A 6-page supplement to his DD Form 149 (Application for Correction of Military Record) wherein he alleges:

		(1) his flight records and duty assignments support his claim of sufficient TOFDC to meet his 18-year gate;

		(2) IPB has ignored recognized flight records in favor of a cursory review of his ORB and Officer Evaluation Reports (OER); and

		(3) IPB placed a PSC 3 on his ORB allegedly due to personal animus as a result of his protracted disagreement with that office;

	c.  Thirty-two enclosures to his 6-pages supplement.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s Integrated Personnel Electronic Records Management System (iPERMS) file shows, with prior enlisted service, he was appointed a Regular Army (RA) Second Lieutenant, Infantry, upon graduation from college.  His source of commissioning was the Reserve Officers' Training Corps.

2.  The applicant was issued a Letter of Appointment in the RA by the US Army Military Personnel Center, Alexandria, VA.  The letter is dated 25 April 1980 and states his appointment would become effective immediately upon execution of the Oath of Office.  Although the applicant’s Oath of Office is not a part of his iPERMS file, his basic date of appointment on his ORB is shown as 28 May 1980.

3.  As an RA officer, the applicant attended the Rotary Wing Aviator Course at Fort Rucker, AL.  Upon his successful completion, he became an Army aviator and transferred to Aviation Branch.  His Aviation Service Entry Date (ASED) was established as 801119 (19 November 1980).  He then served in a variety of assignments and was promoted through the ranks to Captain on 1 March 1984.  On 30 September 1992, he separated under the Voluntary Separation Incentive Program (VSIP).

	a.  Public Law 102-190, dated 5 December 1991, established the VSIP.  The VSIP was a separation benefit program offered to certain mid-career service members of the Armed Forces in over-strength career fields to encourage the members to leave active duty voluntarily.

   b.  VSIP directed the SA to carry out a special separation benefits program under which a Soldier who voluntarily requested a separation from service, rather than possibly facing selection for involuntary separation or denial of reenlistment, would be entitled to a specified separation pay in addition to the same benefits and services provided to those Soldiers who were involuntarily separated from service.

4.  Following his VSIP separation from active duty, the applicant served in the US Army Reserve (USAR) as an Individual Mobilization Augemtee (IMA) assigned to the US Army Space Command (Forward), Colorado Springs, CO, from September 1994 through May 1998, and with I Corps, Fort Lewis, WA, in April 1999.  Thereafter, he served as a USAR Command and General Staff College instructor from 1999 through December 2002.  He was promoted to Major on 9 April 1993 and to Lieutenant Colonel on 1 September 1999.

5.  The applicant was voluntarily ordered to active duty for 3 years in a voluntary indefinite status.  He entered active duty on 8 January 2002 and served as an aviation brigade executive officer in Korea and later as a team chief with the Security Assistance Training Management Organization (SATMO), Fort Bragg, NC, with duty in Bogota, Colombia.  During his SATMO assignment, his ASED was recomputed because of his break in active service.  His new ASED was established as 870815 (15 August 1987).

6.  Following his SATMO assignment, the applicant was assigned as Active Component/Reserve Component advisor/chief of staff with the USAR 91st Division (Training Support), Dublin, CA.  On 29 July 2005, the applicant was appointed in the RA as a Lieutenant Colonel.  In January 2006, he was reassigned to Iraq with duty as Deputy Chief, Aviation, Strategic Operations, 


Multi-National Force – Iraq.  In January 2007, he began his current assignment as Chief, Test Management Division, US Army Operational Test Command, Fort Hood, TX.

7.  On 23 June 2003, IPB notified the applicant that subsequent to a TOFDC audit showing he had earned 83 months’ credit, it was determined he would not meet his 18-year gate and he would be removed from continuous ACIP on 15 August 2005.  On 4 August 2005, he was issued an updated audit showing he had earned 106 months’ TOFDC credit and would be removed from continuous ACIP on 15 August 2005.

8.  In 1989, the ACIP Improvement Act was passed by Congress and made applicable to all the services.  It provided ACIP shall be restricted to RA and USAR officers who hold or are in training leading to an aeronautical rating or designation and who engage and remain in aviation service on a career basis.  Entitlement to ACIP may be on a continuous or conditional (month-to-month) basis.  Officers above pay grade 0-6 (Colonel) with over 25 years of aviation service are not authorized ACIP, either continuous or conditional.

	a.  Continuous ACIP.  Qualification for entitlement to continuous ACIP is earned by completing a prescribed minimum number of operational flying years before reaching a specific control or gate year of aviation service.  The detailed requirements are described below.  Entitlement to continuous ACIP ceases for an officer upon completion of 25 years of aviation service.

      (1) An officer qualified for aviation service is entitled to continuous ACIP starting when the officer enters flight training leading to the original rating or when appointed an officer, whichever is later, and continues until the officer completes 12 years of aviation service.

      (2) An officer qualified for aviation service who has performed at least 72 months of operational flying duty upon completion of 12 years of aviation service is entitled to continuous ACIP for the first 15 years of aviation service.

      (3) An officer qualified for aviation service who has performed at least 108 months of operational flying duty upon completion of 15 years of aviation service is entitled to continuous ACIP for the first 18 years of aviation service.

      (4) An officer qualified for aviation service who has performed at least 120 months of operational flying duty upon completion of 18 years of aviation service is entitled to continuous ACIP for the first 22 years of Total Federal Officer Service (TFOS).  Completion of 144 months or greater entitles the officer to continuous ACIP for 25 years of TFOS.
      (5) The Secretary of the Military Service concerned may permit, on a case by case basis, an officer to continue to receive continuous monthly incentive pay despite the failure of the officer to perform the prescribed operational flying duty requirements during the prescribed periods of time, so long as the officer has performed those requirements for not less than 6 years of aviation service.  The Secretary concerned may not delegate this approval authority.

   b.  Conditional ACIP.  Qualification for entitlement to conditional ACIP is earned by completing a prescribed minimum number of operational and/or proficiency flying hours per month.  The detailed flying hour requirements are described in paragraph 220203 of the Department of Defense Financial Management Regulation.  Flight surgeons and other medical officers who have an aeronautical rating or designation and are qualified for aviation service, as well as other aviation officers who do not qualify for continuous ACIP because of missed gate year requirements or aviation duty in excess of 25 years, may qualify for entitlement to conditional ACIP.

9.  The applicant was unsuccessful in his attempts to persuade the IPB to re-calculate his TOFDC to give him the required months of credit necessary to qualify for his 18-year gate.  On 10 November 2004, he submitted a request for waiver of TOFDC for 18-year gate requirements.  On 6 September 2005, the IPB forwarded a staff action to the SA wherein a group of 16 officers requested TOFDC waivers.  The IPB recommended approval for 14 of the officers; the applicant was not among that group.  On 23 September 2005, the SA approved the staff action granting 14 waivers, but denying 2 waivers, including that of the applicant.  The IPB cited as justification for disapproval the fact the applicant only had 106 months’ credit as of 15 August 2005, needing a waiver of 14 months; and he did not serve in waiver eligibility assignments.

10.  On 26 June 2006, the applicant, who was then in Iraq, filed an Inspector General Action Request (IGAR) with the Multi-National Force Inspector General’s Office (MNF-IG).  In it he recounted his problems with IPB over crediting of TOFDC and requested IG assistance in validating his qualification for achieving his 18-year gate.

11.  The applicant emailed the Investigations Division, MNF-IG, concerning the status of his IGAR.  On 28 October 2006, he received a response stating that the matter had been referred to the HRC-Alexandria IG for resolution based on 
jurisdiction and subject matter expertise.  In the response, the writer opined that the HRC-Alexandria IG was not giving due diligence to the applicant’s IGAR, that MNF-IG had made a “good faith effort to [resolve the] issue,” but a link in the IG system was broken.

12.  A memorandum from the HRC-Alexandria IG to the applicant, dated 26 March 2008, stated a thorough review of the applicant’s case had been conducted.  It revealed:

	a.  the IPB conducted several audits of his TOFDC;

	b.  the Department of the Army G1 reviewed the case; and

	c.  the case received two legal reviews.

All parties determined the applicant did not meet his 18-year gate.  

13.  Concerning the applicant’s TOFDC waiver request to the SA, the HRC-Alexandria IG stated the request was briefed to and reviewed by:

	a.  the Department of the Army G1;

	b.  the Director of the Army Staff;

   c.  the Army Vice Chief of Staff, and;

d.  the Under Secretary of the Army.

All found the waiver request to be without merit.  

14.  The HRC-Alexandria IG also stated the newest [and current] Chief of IPB was asked to review the applicant’s case.  He opined the applicant’s Operations Research/Systems Analyst Military Applications Course (ORSA/MAC) and his follow-on TRADOC Analysis Command-White Sands Missile Range (TRAC-WSMR) assignment did not qualify for TOFDC waiver consideration.  The end result of the applicant’s IGAR investigation was a finding that his TOFDC audits were conducted fairly, that he did not have the requisite TOFDC to qualify for his 18-year gate, and that he was not entitled to relief.

15.  By memorandum dated 4 April 2008, the applicant solicited the support of the Director, Army Aviation Task Force, Office of the Deputy Chief of Staff, 
G-3/5/7, Headquarters, Department of the Army (HQDA), Washington, DC, in his quest to gain TOFDC for his 18-year gate.  On 21 April 2008, the Director of Army Aviation responded via email, stating:

[Applicant] – I have reviewed what you sent to me and looked into your case in great detail.  All who were here during the time of your request have since moved on, however, to give you the benefit of the doubt, officers on our current Army staff have also independently reviewed your case.  While I understand your frustration, your past assignments do not, in my view, support overturning the previous decision.  This case has been studied in depth by several non-biased officers and all have come to the conclusion that you did not meet the requisite number of months for continuous Aviation Career Incentive Pay, nor do you merit a waiver.  I share their views.  You may of course, fly for pay….

16.  The ORB is generated by the Total Officer Personnel Management Information System II (TOPMIS II), a real time, interactive, automated system which supports the management of the officer force.  Assignment and distribution managers in HRC-Alexandria use TOPMIS II to create requisitions and process assignments.  It is used by HQDA, major commands, and installations to manage officer strength and the distribution of officers, and to maintain officer record data.  However, TOPMIS II does not agree with pertinent Army regulations (ARs)and Department of the Army Pamphlets (DA PAMs) in the assignment of Pilot Status Codes.  TOMPIS II, in generating the ORB, uses:

   a.  PSC 1:  SM is on Flight Status (Indicates Continuous Flight Pay Status);

   b.  PSC 2:  SM is not on Flight Status (Indicates Not Authorized Flight Pay); and

   c.  PSC 3:  SM is on Temporary Flight Status (Indicates Conditional Monthly Flight Pay Status).

AR 600-8-104 (in Table 4-1) and DA PAM 640-1 (in Table 6-1) use the following codes:

   d.  PSC 1:  Qualification for Aviation Service;

   e.  PSC 2:  Medically Disqualified; and

   f.  PSC 3:  Non-Medically Disqualified.

17.  AR 600-105 (Aviation Service of Rated Army Officers) sets policies, responsibilities, and procedures for awarding Army aeronautical ratings; qualifying, disqualifying, and requalifying officers for aviation service; and reviewing flight and personnel records of Army aviators to determine their qualifications to continue in aviation service.  It describes Army aeronautical ratings and conditions for disqualification (or termination) and requalification for aviation service.  It contains procedures for convening and conducting a Flying Evaluation Board (FEB) and for aeromedical consultation and in-flight evaluation.  AR 600-105 establishes qualification factors for ACIP and identifies two categories of pay, continuous ACIP and conditional ACIP.

18.  AR 600-105 also provides, in pertinent part, the following as relates to TOFDC:

	a.  An aviator must be in aviation service, assigned to a position coded for operational flying (per AR 570-4) on the unit MTOE or TDA, and meet flying requirements.  For National Guard and US Army Reserve aviators, some career development and functional area training assignments may qualify as determined by the ARNGUS and USAR.  In addition, TOFDC may be credited to the following:

		(1) Aviators who are prisoners of war or are declared missing in action.

		(2) Aviators whose release from active duty is voided by the Army Board for Correction of Military Records (ABCMR). 

		(3) Aviators who have been issued a temporary medical suspension for 180 days or less.

	b.  Operational flying duty credit begins the day following the date the aviator signs out of a nonoperational flying duty position enroute to an operational flying duty position.  Credit is continuous until the aviator signs out enroute to a nonoperational flying duty position.

	c.  TOFDC is recorded by number of months.  The 15th day is the "break even" point for crediting or not crediting a month.  For example, if an aviator signs out of a nonoperational flying duty position enroute to an operational flying duty 
position on the 14th day of a month or earlier, credit begins the following day and the month is counted.  Conversely, if the date of sign out is the 15th day of a month or later, the month is not counted.  If departure from an operational flying duty position is on the 15th day or later, the full month is counted.  Departures on the 14th day or earlier cause the month not to be counted.

	d.  If an aviator remains in operational flying positions in consecutive assignments, credit is continuous.  Leave, temporary duty (TDY), and travel time between assignments are included, except that aviators may not fly or accumulate TOFDC while attending nonaviation schools on temporary duty of 90 days or more.  Officers attending the Aviation Officer Advanced Course after 1 October 1991, will receive TOFDC.  Officers attending the Medical Service Corps or Combined Logistics Officer Advanced Course after 1 October 1991, and who also attend the five-week AIRNET/SIMNET portion of the Aviation Officer Advanced Course, will also receive TOFDC.

	e.  The Standard Installation/Division Personnel System (SIDPERS) updates the officer master file based on departures from operational flying duty positions.  SIDPERS will not update TOFDC and the TOFDC "as of date" until the aviator departs an operational flying duty position enroute to a nonoperational flying duty position or departs an operational position on a permanent change of station, whichever occurs first.  HRC-St. Louis and the National Guard Bureau manually update TOFDC. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant basically wants to receive continuous ACIP from August 2005, the anniversary of his 18th year of aviation service.  If the Army continues to assert that he did not meet his monthly TOFDC requirement, he wants approval of the waiver he was previously denied or, failing that, he wants IPB to produce all MTOE/TDA documents pertinent to his officer assignments.  He also wants the PSC 3 removed from his ORB.

2.  The IPB audited the applicant’s TOFDC records in conjunction with the approach of his 18-year gate.  As a result of that audit, it was determined, and the applicant was informed, he did not meet the requirements for continuous ACIP beyond his 18th year of aviation service.

3.  It is unknown what documents the IPB reviewed in determining that the applicant did not meet requirements for his 18-year gate; the applicant suggests IPB relied heavily upon his OERs in determining flying duty.  A review of those OERs rendered subsequent to the applicant’s September 1992 discharge show:

	a.  no activity from September 1992 to September 1994;

	b.  the applicant served in an Individual Mobilization Augmentee (IMA) status performing 2 weeks of annual training from September 1994 through September 1999; and

	c.  he served as a USAR Command and General Staff College (CGSC) instructor from September 1999 to January 2001.

If the IPB relied on the applicant’s OERs, such reliance would have supported the conclusion reached during the audit.



4.  After receiving the results of the 2005 TOFDC audit, the applicant submitted a request for a waiver of the TOFDC requirements based, presumably, on his being forced to accept “needs of the service” assignments/school attendance which precluded him from operational flying duty assignments that would have qualified him for his 18-year gate.  Such a waiver request would have constituted a tacit admission by the applicant that he did not have the requisite months of TOFDC necessary for continuous ACIP at the 18-year gate.

5.  The applicant’s waiver request was consolidated with other waiver requests and submitted by IPB, through HQDA staff, to the SA for decision.  The IPB recommended the applicant’s waiver be denied and the SA concurred.  In November 2007, the applicant filed an IGAR.  The IG’s review found no error or injustice in the computation of the applicant’s TOFDC and his subsequent loss of continuous ACIP.

6.  The applicant solicited the assistance of the Director of Army Aviation – a General Officer – at HQDA in his attempt to reverse the TOFDC decision of the IPB.  The Director of Army Aviation, following a detailed review, concurred with the decision to deny the applicant continuous ACIP beyond his 18th year of aviation service.

7.  The IPB audit of the applicant’s TOFDC showed he only had 106 months of TOFDC as of 15 August 2005 when he needed a minimum of 120 months; therefore, he did not meet his 18-year gate and he was removed from continuous ACIP.  This decision was reviewed by two legal staffs, the HRC-Alexandria IPB, the HQDA G1, the Director of the Army Staff, the Army Vice Chief of Staff, and the Under Secretary of the Army.  It was then reviewed by the Director of Army Aviation.  All reviews supported the original decision, and the information now provided by the applicant is insufficient to reverse that decision.

8.  The applicant contends he was removed from flight status because the IPB placed a PSC 3 code on his ORB.  The PSC 3 code reflected on his ORB means he is on temporary flight status and indicates his entitlement to conditional monthly flight pay in a “fly for pay” status.  The applicant is not prohibited from flying, just from receiving continuous ACIP.

9.  This Board is not an investigative body; if the applicant desires copies of all MTOE/TDAs for his officer assignments, he should pursue that task on his own.

10.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.
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)                                         AR20080011488





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080011488



11


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1