IN THE CASE OF:	

		BOARD DATE:	16 July 2009    

		DOCKET NUMBER:  AR20090002751 


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:

The applicant’s requests, statements, and supporting documents are submitted through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, removal of all documents related to a 
19 April 2001 Flight Evaluation Board (FEB) from his Official Military Personnel File (OMPF); revocation of Aviation Orders, dated 29 August 2009, and restoration of military occupational specialty (MOS) 153BG (Aviation Maintenance Officer); and reinstatement in the Individual Ready Reserve (IRR) if necessary.   

2.  Counsel states, in effect, that the California Army National Guard (CAARNG) provided the United States Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis) a memorandum stating essentially that the CAARNG has no records of a FEB.  He claims that both the CAARNG and HRC-St. Louis have refused to correct the errors under the belief that only the Army Board for Correction of Military Records (ABCMR) may correct the documents in question. 

3.  Counsel identifies the 12 material errors he claims prejudiced the substantial rights of the applicant.  First, he states the FEB record was erroneously placed in the applicant’s flight record;  second, he states that even if the applicant received a FEB it was deficient in at least 8 regards, which he identifies; third, he indicates the applicant was erroneously removed from his MOS based on the incorrect flight record; fourth, the applicant was improperly transferred to the Ready Reserve because he was erroneously removed from his MOS; and fifth, he claims the entire manner in which the applicant was transferred to the Ready Reserve was unjust. 

4.  Counsel states that on 24 March 2008, while serving as an aviation maintenance officer in the CAARNG, the applicant was notified in an electronic mail (e-mail) message from HRC-St. Louis that he had no MOS as a result of aviation orders, dated 29 August 2006.  The applicant was advised that he had to either be discharged from the Army or transferred to the Retired Reserve.  Counsel claims that as of the date of the application to this Board, HRC-St. Louis was in the process of preparing paperwork for the applicant’s retirement and the applicant was notified he would be transferred to the Retired Reserve on 
8 September 2008.  

5.  Counsel further claims that from 1992 until December 2001, the applicant served as an aviation maintenance officer with the CAARNG, and on 
3 December 2001, he was transferred to the Ready Reserve.  He states the applicant had not been taken out of his MOS at that time, but he was also not in a flying status.  He claims the applicant was under the belief that he was still suspended from flying as a result of command action taken based on a FEB that was apparently held on 19 April 2001.  He claims that in 2008, following his request for his military records from the CAARNG, the applicant discovered he must have lost his MOS as a result of the 19 April 2001 FEB.  

6.  Counsel claims that on 20 February 2001, the applicant was notified by his command that his disqualification from aviation service had been recommended based on the applicant’s failure to remain professionally qualified.  The command did not cite the governing regulation for conducting a FEB based on failing to remain professionally qualified, but instead indicated the applicant had failed to progress from readiness level (RL) 3 to RL 2, which was governed by another Army regulation and a National Guard Regulation (NGR), which pertained to the training phase in which crew members are participating.  

7.  Counsel states that on 21 February 2001, the applicant was notified that he was temporarily suspended from aviation service pending a FEB, which was the only notification the applicant ever received regarding a FEB.  

8.  Counsel points out that the CAARNG has conceded that no FEB was ever convened; however, if the Board were to find otherwise, then the FEB apparently would have convened on 19 April 2001, according to the records.  Counsel indicates that the applicant was not at the FEB and was not notified of the convening of the FEB and never received results from the board until he requested his records more than a year later.  He claims that the applicant repeatedly asked the command for information related to his flying status and was never provided any documentation or verbal counseling regarding the results of the FEB.  By December 2001, under the belief that he was still suspended from flying, the applicant transferred to the Ready Reserve.  

9.  Counsel states that under the regulation governing FEBs, the applicant had several rights that he was not afforded.  Further, the applicant was never provided the results or given the opportunity to respond to the FEB.  Counsel also points out problems related to the FEB date of 19 April 2001.  He states that first the applicant was never notified of the FEB and second, he was attending the warrant officer staff school on that date, which the command would have been well aware of.  Further compounding the problems associated with the FEB was the fact the applicant was never provided the results, which was a direct violation of the governing regulations. 

10.  Counsel provides a supplemental statement from the applicant and the eight enclosures identified on the statement in support of the application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he initially enlisted in the USAR Delayed Entry Program (DEP) in an enlisted status on 27 March 1986, and enlisted in the Regular Army in that status on 1 October 1986.  He served on active duty in the RA for 1 year, 2 months, and 7 days through 7 December 1987, at which time he was honorably released from active duty (REFRAD) and transferred to the USAR.  He served in the USAR in an enlisted status from 8 December 1987 through 30 October 1991.

2.  On 31 October 1991, the applicant was appointed a warrant officer in the USAR and served in that status through 30 December 1991, at which time he entered the CAARNG, in the rank of chief warrant officer two (CW2).  On 
23 March 1995, he was promoted to chief warrant officer three (CW3).

3.  On 31 October 2001, the applicant was honorably discharged from the CAARNG and transferred to the USAR Control Group, Annual Training.  The authority cited for his discharge was paragraph 5A (3) (A), NGR 635-100.  

4.  On 29 August 2006, HRC-St. Louis Permanent Orders Number #WO8690525 terminated the applicant's aviation service orders and his entitlement to aviation career incentive pay (ACIP), effective 23 August 2006.  The authority cited for this action was paragraph 3-12, Army Regulation 600-105.  

5.   On 25 January 2007, the applicant was transferred to the IRR and his OMPF indicates he has remained in that status through the present.  
6.  The applicant's record is void of any documents related to a FEB conducted on 19 April 2001, or at any other time.  It is also void of any indication that the applicant did not satisfy the requirements necessary to retain his aviation status or specialty.  

7.  In connection with the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB) Chief, Personnel Division, which contains a NGB recommendation that the applicant’s request to have all records related to a FEB conducted on 19 April 2001 removed from his OMPF and all other files to include the Individual Aircrew Training Folder (IATF), that his MOS be restored and that he be reinstated in the IRR, be approved.  He confirms that the NGB Aviation and Safety Division is the proponent for MOS 153BG and has been delegated the authority to act on all aviator MOS removal actions by the Chief, NGB; and that this office has no record of a FEB conducted on the applicant or of it approving the applicant's removal from his aviation MOS on behalf of the Chief, NGB, in accordance with its delegated authority.  As a result, no FEB removal action has been approved by the proper authority in this case. 

8.  The NGB Chief, Personnel Division further stated that the CAARNG Director of Army Aviation and Safety provided a memorandum, dated 19 March 2009, which stated, in effect, that there was no FEB conducted on the applicant and that the entry in the applicant's record indicating a FEB had been completed needs to be corrected.  The memorandum was forwarded to the HRC-St. Louis warrant officer management branch on 3 April 2009, and this office forwarded the memorandum to the aviation warrant officer section for their review and consideration of restoring the applicant's MOS on 13 April 2009.  This memorandum was included with the NGB advisory opinion.  On 20 April 2009, the applicant's counsel concurred with the NGB advisory opinion on behalf of the applicant.  

9.  Army Regulation 600-105 (Aviation Service of Rated Army Officers) sets policies, responsibilities, and procedures for qualifying, disqualifying, and requalifying officers for aviation service.  Chapter 6 contains guidance on FEBs.  It states, in pertinent pat, that an FEB should be convened if an officer fails to remain professionally qualified, has marginal potential for continued aviation service, or is currently non-medically disqualified for aviation service and meets the provisions for requalification.   The regulation establishes the FEB appointing authority for ARNG aviators as the Chief, NGB.  

10.  Paragraph 6-3 of the aviation service regulation outlines procedures for conducting a FEB and states, in pertinent part, 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.  It further states that a formal board will be held according to Army Regulation 15-6.  
11.  Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) prescribes the procedures for investigations and boards of officers not specifically authorized by any other directive.  Even when not specifically made applicable, this regulation may be used as a general guide for investigations or boards authorized by another directive, but in that case its provisions are not mandatory.  Chapter 5 provides guidance on the conduct of formal boards and states, in pertinent part, that the respondent will be provided a copy of all unclassified documents in the case file and a letter of notification of the date, time and place of the session; the matter to be investigated, including the specific allegations, in sufficient detail to enable the respondent to prepare; the respondent's rights with regard to counsel; the name and address of each witness expected to be called; and the respondent's rights to be present, present evidence, and call witnesses.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record is void of any indication that a FEB was ever conducted on the applicant, or of any supporting documents that support the termination of the applicant's flight status as directed in HRC-St. Louis Permanent Orders Number #WO8690525, dated 29 August 2006.  Further, it is clear that if a FEB was conducted, it was not accomplished in accordance with regulatory procedures for conducting a FEB (formal board).  Therefore, it would be appropriate to revoke these orders and to remove any documents related to a FEB and/or the applicant's termination from flight status from his OMPF; career management files (CMF) maintained at HRC-St. Louis or by the NGB; any local files maintained by the CAARNG to include his IATF; and any other Army files and records.  

2.  In addition, given there is no evidence of record supporting the applicant's removal from flight status by proper authority, or that documents his loss of aviation qualification, it would also be appropriate to correct the record to show he never lost his aviation MOS and to show he has continued to serve in the IRR as an aviator.  

3.  This action in no way should be interpreted as a prohibition on the appropriate commander from taking whatever action is deemed appropriate in accordance with the applicable regulations if it is determined the applicant is no longer professionally qualified for aviation service.


BOARD VOTE:

____X____  ____X____  _____X___  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 all Department of the Army records of the individual concerned be corrected by:

	a.  revoking HRC-St. Louis Permanent Orders Number #WO8690525, dated 29 August 2006; 

	b.  removing any documents related to a FEB and/or his termination from flight status from his OMPF, CMF, IATF and all other Army files and records; and 

	c.  showing he never lost his aviation MOS and that he has continued to serve in that MOS as an aviator in the IRR through the present.




      _______ _   _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)                                         AR20090002751



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ABCMR Record of Proceedings (cont)                                         AR20090002751


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