IN THE CASE OF:	  

		BOARD DATE:	  10 March 2015

		DOCKET NUMBER:  AR20140006616 


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 correction of his records to show he completed 144 months of Total Operational Flying Duty Credit (TOFDC).

2.  The applicant states:

* His records shows he has only 140 months of TOFDC
* The error dates back to an October 2004 audit of his TOFDC conducted by the Aviation Incentive Pay Branch at the U.S. Army Human Resources Command (HRC)
* The audit erroneously concluded that at that time he had credit for only 106 months of TOFDC when in fact he had 111 months of TOFDC
* He wrote to HRC at the time to request a correction of his record, but apparently the error was not properly corrected
* He was in an operation flying billet continuously from 24 February 1993 when he began flying at Initial Entry Rotary Wing training at Fort Rucker, Alabama, until he left Fort Stewart, GA, on 25 May 2002
* This equates to 111 months of TOFDC and HRC only credited him with 106 months of TOFDC
* At some point, HRC updated the audit to reflect 107 months of TOFDC, but it is still 4 months short
* The 2004 audit, called the 12-year gate audit, is still referenced in his most recent audit in 2013
* If this error is not corrected, he will stop receiving flight pay in February 2015

3.  The applicant provides:

* Memorandum for Army Board for Correction of Military Records (ABCMR), dated 11 April 2014
* Letter to HRC Aviation Incentive Pay Branch, dated 17 October 2005
* HRC Notification of Audit of TOFDC, dated 20 October 2004
* TOFDC Worksheet, dated 20 October 2004
* HRC Notification of Audit of TOFDC, dated 18 October 2013
* TOFDC Worksheet, dated 18 October 2013
* HRC email to him dated 18 October 2013
* Ten DA Forms 759-E (Individual Flight Record and Certificate), for the periods 16 December 1993 through to 25 May 2002
* Individual Flight Record and Certificate
* DA Form 4037 (Officer Record Brief)

CONSIDERATION OF EVIDENCE:

1.  On 20 December 1992, the applicant accepted an appointment in the Regular Army in the rank of second lieutenant (O-1).  He was assigned to Company E, 145th Airborne Battalion (OU91J), Fort Rucker, AL.

2.  Civilian Institution Academic Evaluation Report shows that the applicant attended a full-time, on duty, Naval Postgraduate School in Monterey, CA from 12 February 2002 through 26 March 2003.  The report shows that he completed an extremely demanding graduate-level program in the School of Business and Public Policy and has been awarded the degree of Master of Business Administration with a specialization in System Acquisition Management.

3.  On 26 April 2002, at the applicant's request, an audit of his TOFDC was conducted and the Total Army Personnel Command Chief, Incentive Pay Branch determined that he deserved credit for 109 months of TOFDC.

4.  On 20 October 2004, the applicant was notified that an audit of his TOFDC was conducted in conjunction with his 12-year gate as outlined in paragraph 3-4, Army Regulation 600-105 (Aviation Service of Rated Army Officers).  The purpose of the audit was to ensure the Officer Master File was accurately reflecting his TOFDC and also to ensure he received continuous Aviation Career Incentive Pay (ACIP) if he was entitled.  He was told by the HRC Chief, Incentive Pay Branch that he deserved credit for 107 months of TOFDC and that he met his 12-year gate and was entitled to receive continuous ACIP to 24 February 2011 as long as he remained qualified.

5.  He was promoted through the ranks to lieutenant colonel (O-5) on 1 August 2009.

6.  On 18 October 2013, the applicant was notified that an audit of his TOFDC was conducted in conjunction with his 18-year gate as outlined in paragraph 3-4, Army Regulation 600-105.  He was told that the relook of his 18-year gate audit indicated he earned credit for 140 months TOFDC and was entitled to receive continuous ACIP to 24 February 2015 as long as he remained qualified and continued to pass an annual Class 2A flight physical.

7.  During the processing of this case an advisory opinion was obtained from the HRC Chief, Incentive Pay Branch who recommends denial of the applicant's request.  He states that the applicant's 12-year gate audit dated 20 October 2004 shows he earned 107 months of TOFDC.  The 2004 documents illustrate a manual correction of the TOFDC worksheet and memorandum changing the TOFDC from 106 to 107 due to the 10 months of TOFDC awarded in 1993.  Those same 107 months of TOFDC were calculated in the 18-year gate audit dated 18 October 2013.

8.  The Chief, Incentive Pay Branch stated that in accordance with Army Regulation 600-105, June 2010, paragraph 3-3, aviators assigned to an operational position must be incorporated into a unit Aircrew Training Program to accumulate TOFDC.  In addition, paragraph 3-4a states an aviator must be assigned to an operation position for an aviation officer on the unit Modified Tables of Organization and Equipment (MTOE) or Tables of Distribution and Allowances (TDA) to accumulate TOFDC.  Furthermore, paragraph 3-4c states that TOFDC is recorded by number of months and the 15th day of the month is the "break even" point for crediting or not crediting a month.  The HRC Chief, Incentive Pay Branch enclosed with the advisory opinion the following documents which show the applicant was not in a position to earn TOFDC from 12 February 2002 through 23 February 2005:

	a.  Officer Evaluation Report for the period covering 13 February 2001 through 12 February 2002, which shows his last day of assignment to an operational flying duty position with the 1st Battalion (TS) (AV), 351st Regiment, Fort Stewart, GA.  The applicant cannot earn TOFDC for February 2002 as it is prior to the breakeven point of the 15th day of the month.

	b.  Civilian Institution Academic Evaluation Report for the period covering 12 February 2002 through 26 March 2004, which shows the applicant's report date to a non-operational position.  The applicant cannot earn TOFDC as the assignment is in a non-operational position.

	c.  Service School Academic Evaluation Report for the period covering 29 March 2004 through 25 June 2004, which shows the applicant's attendance at the Command and General Staff College, an education course that does not earn TOFDC.

	d.  Individual Flight Record and Certificate for the period covering 26 May 2002 through 31 October 2005, which shows the date the applicant was incorporated into the unit Aircrew Training Program, 23 September 2005, and became eligible for TOFDC.

9.  The HRC Chief, Incentive Pay Branch stated that TOFDC cannot be awarded for the timeframe 12 February through 25 May 2002 or to the end of the 12-year gate audit, 23 February 2005, as it does not meet the aviation service policies of Army Regulation 600-105.  As such, the applicant will convert from Continuous to Conditional Aviation Career Incentive Pay (ACIP) on 24 February 2015 and must pilot an Army aircraft a minimum of 4 hours per month to earn ACIP in accordance with DOD Financial Management Regulation, Volume 7a, Chapter 22.

10.  In a rebuttal to the advisory opinion dated 8 June 2014 the applicant states:

	a.  The findings of the advisory opinion from HRC are in error.

	b.  The HRC advisory opinion states that he should not receive any TOFDC for the period 12 February 2002 through 23 February 2005, which is incorrect.

	c.  He remained in an operational flying status from 12 February 2002 through 25 May 2002 and with this time included he should have a total of 144 months TOFDC, which would allow his ACIP to continue through his 25th year of service.

	d.  The advisory opinion references an OER he received on 12 February 2002 while he was assigned to the 1st Battalion (TS) (AV), 351st Regiment at Fort Stewart.  His assignment did not end when he received that OER and he did not depart this operation flying assignment until 25 May 2002.

	e.  While still serving in the 351st Regiment at Fort Stewart, he received permanent change of station orders dated 18 April 2002 to report to the Naval Postgraduate School on 1 July 2002.  Based on these PCS orders, he actually signed out of the 1-351st Regiment on 25 May 2002.  His DA Form 759-E dated 25 May 2002 shows that his flight records were closed on 25 May 2002, were signed on 25 May 2002, and that he was in an operational flying position.

	f.  He was in an operational flying status continuously from 24 February 1993 through 25 May 2002.  This equates to 111 TOFDC.  He was in an operation flying status from 23 September 2005 to 20 June 2008.  This equates to an additional 33 months TOFDS, for a combined total of 144 months TOFDC.

11.  Along with his rebuttal to the advisory opinion the applicant provides a copy of Orders 108-92 dated 18 April 2002, which show he was assigned to duty at the Naval Post Graduate School in Monterey, California, with a reporting date of 1 July 2002.  The orders state that he may proceed on or about 14 May 2002.  He also provides a copy of his DA Form 759-E for the period 1 November 2001 to 25 May 2002, which is dated 25 May 2002 and a copy of his OER for the period 13 February 2001 through 12 February 2002, which is dated 13 March 2002.  These documents show he was assigned to the 1st Battalion (TS) (AV), 351st Regiment at Fort Stewart.

12.  Army Regulation 600-105, paragraph 3-5 covers ACIP.  It states that 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 aviation service entry date (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 operation 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 minimum to be eligible.  When verified the aviator is assigned as 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 office 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.

13.  Paragraph 3-7 of Army Regulation 600-105 covers TOFDC.  It states:

	a.  To receive credit for TOFDC an aviator must be in aviation service, assigned to a position coded for operational flying in accordance with Army Regulation 570-4 on the unit MTOE or TDA, and meet flying requirements.  In addition, TOFD may be credited to the aviators who are prisoners of war or are declared missing in action; aviators whose release from active duty is voided by the ABCMR, and/or 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 en-route to an operational flying duty position.  Credit is continuous and until the aviator signs out en-route to a nonoperational flying duty position.

	c.  TOFDC is recorded by number of months.  The 15th days 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 en-route to an operational flying duty position on the 14th days of the 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 14 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 TDY of 90 days or more.  Officers attending the Aviation Officer Advanced Course after 1 October 1991 will receive TOFDC.  Officers attending the Medical School Corps or Combined Logistic Officer Advance Course after 1 October 1991, and who also attend the 5-week AIRNET/SIMNET portion of the Aviation Officer Advanced Course, will also receive TOFDC.

14.  Based on the needs of the Army, aviation officers may fail to meet the TOFDC gate requirements of Table 3-3 of Army Regulation 600-105 but they will be eligible for a waiver.  Only aviation officers, commissioned or warrant, with an ASED of 1 October 1979 and after, who have failed to meet the TOFDC requirements for the new eligibility gates due to the needs of the service assignment, are eligible for a waiver.  Needs of the service assignments are defined as: 

	a.  DOD joint duty in a designated critical billet.

	b.  Army education requirements schooling (AERS) and utilization tour.

	c.  U.S. Army Recruiting Command (USAREC); Reserve Officers’ Training Corps (ROTC); or U.S. Military Academy (USMA) cadre assignment

	d.  Aviation officer position (coded 15 or 67J) on the TDA of the Army Staff (ARSTAF) or field operating agency (FOA) of the ARSTAF in the National Capital Region.

	e.  Assigned when medically disqualified but subsequently requalified for aviation service.

15.  Table 3-3 applies to persons who qualify for continuous ACIP.  This table shows the following:

ASED
Gate
TOFDC Months Required
Continuous ACIP To
ASED prior to 1 October 1979
12 year gate
72 months or greater
18 years of aviation service

18 year gate 
108 months through 131 months
22 years TFOS


132 months or greater
25 years TFOS
ASED on or after 1 October 1985
12 year gate
108 months or greater
18 years of aviation service

18 year gate
120 months through 143 months
22 years TFOS


144 months or greater
25 years TFOS
ASED from 1 October 1979 to 30 September 1985
As of 1 October 1991
72 months or greater
18 years of aviation service

12 year gate
72 months or greater
15 years of aviation service

15 year gate
108 months or greater
18 years of aviation service

18 year gate 
120 months through 143 months
22 years TFOS


144 months or greater
25 years TFOS
16.  Only aviators, who have accrued 72 months or more TOFDC as of 1 October 1991, are entitled to receive continuous ACIP directly to 18 years of aviation service as long as they remain qualified.  If 72 months are not accrued as of 1 October 1991, the 12, 15, and 18-year gate requirements apply.  Warrant 
officers who pass their 18-year gate (and meet the requirements for continuous ACIP to 25 years TFOS) will be paid continuous ACIP until disqualified, terminated, or retired. 

17.  Table 3-3 of AR 600-105 states that Army aviators qualified for aviation service, whose ASED falls between 1 October 1979 and 30 September 1985, who complete 120 months of TOFDC by the end of 18 years following their ASED “may continue ACIP through 22 years of the Total Officer Federal Service (TFOS) if they remain qualified.”

18.  TOFDC waivers will not apply to aviation officers who voluntarily decline operational flying assignments or elect to take nonoperational flying assignments which preclude TOFDC.  Officers who decline operational flying assignments required to meet the first gate will sign an HRC declination memorandum. Waiver must meet the following prerequisites:  the officer must have accrued at least 72 months TOFDC; the request must be submitted no earlier than 12 months prior to the gate for which the waiver is being requested; aviation officers who receive a waiver are not eligible for a second waiver; and aviation officers applying for an 18-year gate waiver are only eligible for continuous ACIP to 22 years TFOS.  They are not eligible for a waiver for pay to 25 years of TFOS, or from 22 to 25 years TFOS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  Based on Table 3-3 of Army Regulation 600-105, he is required to complete 144 months or greater of TOFDC in order to qualify for continuous ACIP to 25 years.  The evidence of record shows that the applicant was credited with only 140 months and therefore failed to qualify for continuous ACIP to 25 years.

3.  The applicant argues that his TOFDC worksheet was not constructed correctly.  He provides copies of his DA Form 759 which show he was assigned to Fort Stewart, Georgia when his flight record was closed on 25 May 2002, due to his permanent change of station.  He also provides Orders 108-92 which show he was scheduled to PCS to Fort Jackson, SC with a reporting date of 1 July 2002.  

4.  However, his records contained a DA Form 1059 (Civilian Institution Academic Evaluation Report) which shows that he attended a full-time, on duty, Naval Postgraduate School in Monterey, CA from 12 February 2002 through 26 March 2003.  The applicant has provided no explanation as to how it was possible for him to be in two different places at the same time.  His concern alleging error or injustice in the calculation of his TOFDC must be adequately supported by clear and convincing evidence.  The evidence he provided is neither clear nor convincing.

5.  In accordance with the applicable regulation, TOFDC cannot be awarded for the timeframe 12 February through 25 May 2002 or to the end of the 12-year gate audit, 23 February 2005, as it does not meet the aviation service policies of Army Regulation 600-105.  

6.  The applicant has not shown error or injustice in the actions taken by the Army in his case.

7.  In view of the foregoing, his request should be denied.

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)                                         AR20140006616



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ABCMR Record of Proceedings (cont)                                         AR20140006616



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