IN THE CASE OF:	  

		BOARD DATE:	    18 February 2010

		DOCKET NUMBER:  AR20090006301 


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 restoration of Aviation Career Incentive Pay (ACIP) for the period from 19 February 2007 through 27 May 2008. 

2.  The applicant states that the loss of ACIP during the contested period was due to the same circumstances and causations that delayed his promotion to chief warrant officer four (CW4).  His ACIP was discontinued due to the bogus reasoning that he was not medically qualified.  The Board's previous decision to grant him full relief regarding adjustment of his promotion to CW4 and Federal Recognition shows that he was medically qualified and should therefore be entitled to ACIP for the same period.  

3.  The applicant provides the following documents in support of his application:  Headquarters, 1st Battalion, 137th Aviation Regiment Memorandum, subject: Verification of Promotion Eligibility for (applicant), dated 26 September 2008; National Guard Bureau (NGB) Special Orders Number 214 AR, dated 19 August 2008; NGB Memorandum, subject:  Promotion as a Reserve Commissioned Warrant Officer of the Army, dated 19 August 2008; DA Form 4186 (Medical Recommendations for Flying Duty), dated 23 July 2008; State of Ohio Adjutant General's Department, Orders 154-651, dated 2 June 2008; Application for Aviation Service Orders for Previously Designated Army Aviator, subject:  Request for Aviation Service Orders, dated 15 May 2008; Ohio Army National Guard (OHARNG) Memorandum, subject:  Sworn Statement Requesting Return to Aviation Service, dated 7 May 2008; OHARNG Orders 020-07, dated 20 January 2007; State of Ohio Adjutant General's Department, Orders 051-093, dated 20 February 2008; State of Ohio Adjutant General's Department, Orders 052-098, dated 21 February 2006; Headquarters, U.S. Army Aviation Center, Fort Rucker, AL, Orders 138-11, dated 20 July 1987; DD Form 2808 (Report of Medical Examination), dated 20 December 2007; DD Form 2807 (Report of Medical History), dated 15 May 2008; and the Selective Serotonin or Monoamine Reuptake Inhibitor Information Sheet, dated January 2006.

CONSIDERATION OF EVIDENCE:

1.  Army Regulation 600-105 (Aviation Service and Rated Army Officers) covers the aviation service policies of rated Army officers and flight surgeons.  The regulation provides for the following definitions: 

	a.  Aviation service is service performed by an officer who has or is training for an aeronautical rating.  Aviation service continues without interruption until the officer is disqualified or administratively terminated from aviation service.

	b. TOFDC (Total Operational Flying Duty Credit) is the cumulative number of months of flying performed under competent orders by rated or designated members while serving in an assignment in which basic flying skills normally are maintained while performing assigned duties and flying performed by members in training that leads to the award of an aeronautical rating or designation. 

	c.  Aviation gates are the two steps (12th and 18th year computed from the Aviation Service Entry Date (ASED)) in an officer’s aviation service used to determine further entitlement to continuous incentive pay. 

2.  Having completed prior enlisted and warrant officer service, the applicant's records show he was previously awarded the Army Aviation Badge and Aeronautical Rating of Army Aviator effective 25 August 1987.  This date was established as his ASED. 

3.  His records also show he was appointed as a chief warrant officer two (CW2) in the Indiana Army National Guard and executed an oath of office on 12 September 1992.  He subsequently served in various positions within and outside continental United States, transferred to the OHARNG, held military occupational specialties 154C (CH-47D Pilot) and 152G (AH-1 Cobra Attack Helicopter Pilot), and was promoted to chief warrant officer three (CW3) on 29 January 2002. 




4.  On 18 January 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 22 March 2004 to 1 March 2005.  He was honorably released from active duty to the control of his ARNG unit on 5 April 2005.  He was assigned to the 137th Aviation Regiment, OHARNG. 

5.  On 21 February 2006, the Adjutant General's Department, OHARNG, published Orders 052-098, indicating the applicant had performed 133 months of TOFDC and met the minimum operational flying duty requirements for the 18 year gate on 25 August 2005 with entitlement to continuous ACIP until 22 years of aviation service on 25 August 2009.

6.  On 19 February 2007, the applicant was restricted from flight duty as a result of a severe adverse reaction to a prescribed medication (Crestor).  His illness ultimately precipitated a neuropsychological disorder that was disqualifying for all classes of Army aviation.  He began treatment in June 2007, which suspended him from flight duty.  He was placed in remission from the disorder in October 2007 and required continued treatment until at least July 2008.  He completed all Aeromedical Policy Letter (APL) requirements for waiver submission.  In the interim, pending waiver approval, he received a 90-day temporary authorization clearing him to return to cockpit duties.  

7.  On 20 February 2008, the Adjutant General's Department, OHARNG, published Orders 051-093, terminating his ACIP effective 19 February 2008.  The orders indicated that the applicant was temporarily suspended from flying duty and had been suspended in excess of 365 days.  In accordance with Army Regulation 600-105 and the Department of Defense Financial Management Regulation (DODFMR), Volume 7A, chapter 22, dated October 1999, disqualification for medical incapacity would be effective on the first day following a period of 365 days that commences on the date of incapacitation.

8.  On 2 May 2008, the applicant was granted a temporary 90-day medical recommendation for flying duty pending waiver approval.

9.  On 2 June 2008, the Adjutant General's Department, OHARNG, published Orders 154-651, reinstating the applicant's ACIP effective 27 May 2008.  The orders indicated that the applicant was temporarily suspended from flying duty and his ACIP was terminated effective 19 February 2008.  He was determined to be medically qualified and was reinstated with ACIP effective 27 May 2008.

10.  On 23 July 2008, the applicant was issued a continuation of his temporary 90-day medical recommendation for flying duty.

11.  On 19 July 2008, NGB published Special Orders Number 214 AR extending the applicant Federal recognition for promotion to CW4 effective 31 July 2008.

12.  On 21 August 2008, the applicant petitioned the ABCMR for correction of the effective date of his promotion to CW4 from 31 July 2008 to 29 January 2008.  He stated that the delay in promotion was due to excessive processing time by the U.S. Army Aviation Medical Center at Fort Rucker, AL, in the reviewing, approving, and granting of a waiver and approving his flight physical.  He also argued that if not for the adverse reaction to the prescribed drug, his flight physical would not have been compromised and he would have been promoted earlier.

13.  On 12 March 2009, the ABCMR granted the applicant full relief by recommending amendment of NGB Special Orders Number 214 AR to show the effective date of his promotion to CW4 as 29 January 2008 and the payment of any adjustment of pay due as a result of this correction.

14.  An advisory opinion was obtained on 15 September 2009 from the NGB.  An official in the Personnel Division recommended restoration of the applicant’s lost ACIP in the amount of $5,544.00 and that by regulation if an aviator is returned to flying status after a period of suspension all suspended ACIP is returned to the aviator.  The official stated:

	a.  The applicant met his 18-year gate and was granted continuous ACIP  until his 22nd year of service, 25 August 2009.  On that date, he would be entitled to conditional ACIP.  He was medically suspended from flying duties on 19 February 2007 due to an adverse reaction to a prescription medication which was taken under the supervision of a surgeon.  On 19 February 2008, his ACIP was terminated due to temporary suspension of his flying duties in excess of   365 days.  He eventually resolved the medical issues without a medical disqualification and returned to flying status on 2 May 2008.  His ACIP was then reinstated on 27 May 2008 as shown on the orders issues by the OHARNG. 

	b.  His documents show the amount of $1,876.00 was deducted in July 2008 and $3,668.00 in September 2008.  According to DODFMR 7000.14-R, Volume 7A, chapter 22, paragraph 22020D, entitlement to ACIP, conditional or continuous, to which an officer would otherwise be entitled, is stopped during the period of suspension starting with the effective date of suspension in competent orders.  If the suspended status is resolved so that the officer is qualified for aviation service, then entitlement to ACIP is based on another paragraph that essentially states the effective date of qualification must be the same as the effective date of the suspension.  
15.  The applicant was provided with a copy of the advisory opinion on 28 September 2009.  He concurred on 2 October 2009. 

16.  Army Regulation 600-105 covers the aviation service policies of rated Army officers and flight surgeons.  It states an aeronautical rating certifies successful completion of prescribed aviation or aviation medicine training.  Before an officer may fly and be entitled to ACIP, he or she must be qualified for aviation service.  This will be authorized in the aeronautical order awarding the rating.  Paragraph 3-1 of this regulation states that warrant officer and commissioned warrant officer aviators who maintain a pilot status code (PSC) of 1 and primary military occupational specialty (PMOS) 152B through 156A are considered in aviation service.  Paragraph 3-5 of this regulation covers ACIP and states officers entitled to ACIP include those who are entitled to basic pay, have an aeronautical rating, are student officers in training in the qualification course leading to the award of an aeronautical rating, or are qualified for aviation service.  There are two types of ACIP:

	a.  Continuous ACIP:  Army aviators qualified for aviation service are entitled to continuous ACIP for 12 years following their ASED as long as they remain qualified .  Table 3–3 applies to persons who qualify for continuous ACIP; and 

	b.  Monthly ACIP:  Aviators who are not entitled to continuous ACIP may receive monthly conditional ACIP only while serving in an operational flying position in accordance with Army Regulation 570–4 (Manpower Management).  The pay rate will be the same as for continuous ACIP.  These aviators must meet the monthly flight minimums to be eligible.  When verified that the aviator is assigned to an operational flying position, the military personnel office will inform the servicing finance and accounting office that the officer is eligible for monthly conditional ACIP.  The effective date is the day the officer is assigned to the position.  Conversely, the military personnel office will direct Finance to stop ACIP when the officer leaves the position or fails to meet the flying requirements.

17.  DODFMR, Volume 7, chapter 22 provides for the following:

	a.  Section 22207 states that in the case of Incapacity Not the Result of Performance of Flying Duty, an officer who is medically incapacitated shall be considered qualified for aviation service until such time as he or she is disqualified for aviation service.  Disqualification for medical incapacity will be effected on the first day following a period of 365 days that commences on the date of incapacitation, or on the date a competent medical authority determines the medical incapacitation to be permanent, whichever is earlier.  No entitlement to ACIP exists during a period of disqualification.  When an officer, who is entitled to continuous ACIP, is incapacitated not as the result of performing flying duty, entitlement continues past the date of incapacitation and through the day before the date of disqualification for aviation service. 

	b.  Section 220210 states that an officer may be disqualified for aviation service for medical or professional reasons according to regulations of the Military Service concerned.  In the case of disqualification for medical reasons, the following applies for all Military Services.  Disqualification for medical incapacity will be effected on the first day following a period of 365 days that commences on the date of incapacitation, or on the date a competent medical authority determines the medical incapacitation to be permanent, whichever is earlier.  ACIP is not authorized on any basis for any period during which an officer is disqualified for aviation service.

	c.  Section 22010D provides for Entitlement to ACIP for Period of Suspension Changed to Qualified.  ACIP (continuous or conditional), to which an officer otherwise would be entitled, is stopped during any period of suspension starting with the effective date of suspension in competent orders.  If the suspended status is resolved so that the officer is qualified for aviation service, then entitlement to ACIP is based on subparagraphs 220210.D.1 and D.2 (the effective date for qualification must be the same as the effective date for suspension.).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his entitlement to ACIP during the period from 19 February 2008 through 27 May 2008 should be restored.  

2.  The evidence of record shows the applicant suffered a temporary medical condition on 19 February 2007 that restricted him and temporarily suspended him from flight duty.  He was ultimately issued orders terminating his ACIP effective 19 February 2008.  The orders indicated that he was temporarily suspended from flying duty and had been suspended in excess of 365 days.  In accordance with applicable regulations, disqualification for medical incapacity would be effective on the first day following a period of 365 days that commences on the date of incapacitation.

3.  The evidence of record also shows that he attempted to resolve the situation with medical authorities and the Fort Rucker, AL, Aviation Center, but the process took too long.  He was ultimately issued orders reinstating his ACIP effective 27 May 2008.  The orders indicated that he was determined to be medically qualified and was reinstated with ACIP effective 27 May 2008.

4.  However, by regulation, if the suspended status is resolved so that the officer is qualified for aviation service, the effective date for qualification and entitlement to ACIP must be the same as the effective date for suspension.  Since his ACIP was suspended on 19 February 2008, and since he was found qualified for aviation service, he should have been reinstated on 19 February 2008.  Therefore, he is entitled to full relief.

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.  amending Orders 154-651, issued by the Adjutant General's Department, OHARNG, on 2 June 2008, to show the applicant was determined to be medically qualified and was reinstated with ACIP effective 19 February 2008; and 

	b.  restoration of ACIP entitlements for the period from 19 February 2007 through 27 May 2008.  





      _______ _  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)                                         AR20090006301



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ABCMR Record of Proceedings (cont)                                         AR20090006301



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