IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100013087 


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 reconsideration of his earlier petition for the following corrections:

   a.  award of Total Operational Flying Duty Credit (TOFDC) in order to qualify for reinstatement of continuous Aviation Career Incentive Pay (ACIP) for 18-year gate purposes retroactive to 15 August 2005; and 

   b.  a change to the Pilot Status (PS) Code (PSC) flag in his record from PSC 3 (Non-Medically Disqualified) to PSC 1 (Qualified for Aviation Duty);

2.  The applicant states during the original review of his case, the Board identified enclosures 2 through 32 of his request as excess material without further comment.  The only comment exception was a single electronic mail (e-mail) message from the Director of Army Aviation in which he stated he could not comprehend the justification.  The applicant admits the enclosures were quite onerous and over-whelming, and obviously not properly presented to either the Inspector General (IG), the Director of Army Aviation, or any previous reviewing body.

3.  The applicant states the evidence he now presents should more clearly and succinctly prove he is entitled to correction of his TOFDC; hence, continuous ACIP back pay and corrected PSC.  He states new evidence suggested by the Board, including Modification Table of Organization and Equipment/Table of 

Distribution and Allowances (MTOE/TDA) information, has been established and is also embedded herein.

4.  The applicant claims the new evidence in his reconsideration request conclusively shows he met the regulatory requirements for award of continuous ACIP.  He states the Board should now consider that in his previous dealings with the U.S. Army Human Resources Command (USAHRC) Incentive Pay Branch (IPB), he successfully argued for reinstatement of ACIP on two previous occasions in 2001 and 2004.  He claims after prolonged debate, he was awarded back pay.  These favorable rulings from the USAHRC IPB naturally jaded any future dialogue on the subject.  He claims while it might be near impossible to prove sheer animus by the USAHRC IPB, the new evidence indicates obvious disregard of legitimate authoritative TOFDC documentation, apparent misrepresentation of his TOFDC waiver request information, and inappropriate use of PSCs concerning flags on his personal record.  The applicant states he does not make these weighty accusations lightly and without considerable forethought and supportive evidence.  While it may be a simple misunderstanding of the facts, the evidence casts considerable doubt on otherwise good people's motives.

5.  The applicant provides a 37-page self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080011488 on 25 June 2009.

2.  During its original review of the case, the Board concluded the HRC ICB audited the applicant's TOFDC requirement in conjunction with his approaching his 18 year gate and determined he did not meet the requirements for continuous ACIP.  It further found a review of his Officer Evaluation Reports (OERs) supported the ICB audit conclusion.  It further found in a request for a waiver of the TOFDC requirements, the applicant tacitly admitted he did have the requisite months of TOFDC necessary for continuous ACIP at the 18-year gate by basing his waiver request on his acceptance of assignments meeting the needs of the service and school attendance prevented him from obtaining operational flying duty assignments.

3.  The applicant now provides what he claims is new evidence by consolidating flight records and other documents already available to the Board during its original review into a 37-page reconsideration request that also includes MTOE/TDA information the Board suggested he pursue.

4.  The applicant's statement indicates the flight records show 163 months of TOFDC prior to the IPB termination date of 15 August 2005.  He claims this recognition meets the most stringent 18 year gate requirement of greater than 144 months required for continuous ACIP.  He provides what he claims is a TDA extract showing his TRADOC Analysis Command-White Sands Missile Range
(TRAC-WSMR) assignment was not coded as non-operational flying (G7) which allows TOFDC award in order to meet the 18-year gate.

5.  On 23 June 2004, the USAHRC IPB notified the applicant that subsequent to a TOFDC audit, it was determined he would not meet the 18-year gate and he would be removed from continuous ACIP on 15 August 2005.

6.  On 10 November 2004, the applicant requested a waiver of TOFDC for the
18-year gate requirements.

7.  On 6 September 2005, the USAHRC IPB forwarded a staff action to the Secretary of the Army (SA) containing the applicant's request for a TOFDC waiver.

8.  On 23 September 2005, the SA disapproved the applicant's TOFDC waiver request.

9.  On 26 June 2006, the applicant filed an IG Action Request (IGAR) requesting the IG's assistance in validating his qualification for achieving his 18-year gate.

10.  On 26 March 2008, the USAHRC IG stated a thorough review of the applicant's case revealed the IPB conducted several audits of his TOFDC, the Department of the Army (DA) G1 reviewed the case, two legal reviews were obtained and all parties determined the applicant did not meet the 18-year gate.  The IG further found the applicant's TOFDC waiver request was reviewed by the DA G1, Director of the Army Staff, Army Vice Chief of Staff, and Under Secretary of the Army, who all found the waiver request to be without merit.  The IG further stated the new Chief, IPB was asked to review the applicant's case and he opined that the applicant's Operations Research/Systems Analyst Military Applications Course (ORSA/MAC) and follow-on TRAC-WSMR assignment did not qualify for TOFDC waiver consideration.  The end result of the IGAR 

investigation was the TOFDC audits were conducted fairly, the applicant did not meet the requisite TOFDC to qualify for his 18-year gate, and he was not entitled to relief.

11.  On 4 April 2008, the applicant requested the support of the Director, Army Aviation Task Force, Office of the Deputy Chief of Staff G3/5/7 to receive the TOFDC necessary to qualify for his 18-year gate.

12.  On 21 April 2008, the Director, Army Aviation Task Force, Office of the Deputy Chief of Staff G3/5/7 responded to the applicant's request and indicated he reviewed all the documentation the applicant sent him and looked into the situation in great detail.  He further stated that officers on his staff also reviewed his case and while he understood the applicant's frustration, the applicant's past assignments did not, in his view, support overturning the previous decision.  He further informed the applicant his case had been studied in depth by several
non-biased officers and they all came to the same conclusion that the applicant did not meet the requisite number of months for continuous ACIP nor did he merit a waiver.

13.  Army Regulation 600-105 (Aviation Service of Rated Army Officers) sets policies, responsibilities, and procedures for the following:

* qualifying, disqualifying, and re-qualifying officers for aviation service
* establishing and adjusting aviation service entry dates (ASED)
* awarding Army aeronautical ratings
* Army implementation of the ACIP laws
* describes conditions for disqualification (or termination) and requalification for aviation service
* contains additional procedures for convening and conducting a Flying Evaluation Board (FEB) 
* contains procedures for an aeromedical consultation and in-flight evaluation

14.  Paragraph 3-1 of the same regulation contains guidance on qualification factors for ACIP.  It states Army aviators who remain fully qualified for aviation service are entitled to continuous ACIP for at least 12 years following their ASED. 
Subsequent to this date, Army aviators must remain in the rated inventory or the Acquisition Corps and meet the criteria for entitlement to continuous ACIP to remain entitled to continuous ACIP.  For the 12-year gate, 96 months or greater of TOFDC and 18 years of aviation service is required.  For the 18-year gate,
120 months through 143 months of TOFDC with 22 years of aviation service or 

144 months of TOFDC and 25 years of aviation service is required.  TOFDC is recorded by number of months.

15.  Paragraph 3-4 of the same regulation contains guidance on the TOFDC and states an aviator must be in aviation service, part of the rater inventory, and assigned to an operation position coded for an aviation officer on the unit MTOE or TDA.  A TOFDC audit will be completed by USAHRC IPB not later than
12 months prior to each gate.  USAHRC's audit will be the audit of record for calculation of TOFDC.  Officers who dispute the findings may appeal the audits through the USAHRC IPB to the Deputy Chief of Staff, G-1 Aviation Personnel System Staff Officer (PERSSO) who will make the final determination.

16.  The Total Officer Personnel Management Information System (TOPMIS) II is a real-time, interactive, automated system supporting the management of the officer force and is used to create requisitions and process assignments.  TOPMIS II identifies PS codes as follows:

* PSC 1 - On flight status (Indicates Continuous Flight Pay Status)
* PSC 2 - Not on Flight Status (Indicates Not Authorized Flight Pay)
* PSC 3 - Temporary Flight Status (Indicates Conditional Monthly Flight Pay Status).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his new evidence and argument support his request for award of TOFDC in order to qualify for reinstatement of continuous ACIP for 18-year gate purposes retroactive to 15 August 2005, and a change to his PSC from 3 to 1, along with the supporting statement in its entirety, including the TDA extract data, has been carefully considered.  However, the new argument and evidence provided by the applicant is not sufficient to grant the requested relief.

2.  The evidence of record confirms the applicant's request has been reviewed at the highest level on multiple occasions and that all of these reviews have resulted in a determination that he did not meet the TOFDC requirements necessary for his 18-year gate and continuous ACIP.  The HRC IPB conducted several audits, the case was considered and denied by the SA after review by the highest levels of Army staff, has been the subject of IG review, and was finally reviewed by the DA Director, Army Aviation Task Force, Office of the Deputy Chief of Staff G3/5/7.  All of these reviews have resulted in a determination the applicant did not meet the TOFDC requirements for his 

18-year gate and as a result was not eligible for continuous ACIP and/or to change to his PSC.

3.  The TDA extract data and other information now provided by the applicant was available when his case underwent the Army reviews outlined in the preceding paragraph and it was determined by the highest level of Army aviation officials that the applicant's assignments did not qualify for TOFDC.  As a result, this information is not sufficiently compelling to support this Board substituting its judgment for that of the senior Army officials who have reviewed and decided on this matter in the past, which includes the SA.  Absent any evidence of bias during the Army's multiple reviews of this case, there is an insufficient evidentiary basis to support a change to the original Board decision on this matter. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20080011488, dated 25 June 2009.



      _______ _ 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)                                         AR20100013087



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ABCMR Record of Proceedings (cont)                                         AR20100013087



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