PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:               6 January 1999
	DOCKET NUMBER:      AC96-07804
				      AR1998014506

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Hubert S. Shaw, Jr. 		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Curtis W. Barbee		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests his records be corrected to show he has been eligible for continuous flight pay since 1976 with appropriate back payment of Aviation Career Incentive Pay (ACIP) which is also referred to as continuous flight pay by the applicant.

3.  The applicant states he has met legal requirements for continuous flight pay since 1976, but has been periodically denied such by an illegal Aviation Branch policy.  In support of his application, he submits an enclosure which states that, during a June 1994 review of his finance records, he was advised that a 1984 Army Aviation Branch policy requiring officers to be "members of the Aviation Branch" in order to qualify for ACIP was "illegal".  The applicant's enclosure provides his description of the events surrounding his selection of Armor as his primary specialty and Aviation as his alternate specialty, meeting aviation "gates" and Armor Branch qualification.  Paragraph 5 of his enclosure is purported to be a "legal review" which cites the various Presidential, Department of Defense, and Department of the Army orders, directives, and regulations which relate to the "entitlement" to ACIP.  Subparagraph 5g (1) and (2) state the two reasons the applicant contends the Army policy requiring membership in the Aviation Branch as a requirement for continuous ACIP is illegal as follows:

	a.  The first reason cited is that 37 USC 301a created an entitlement to ACIP when the officer met the conditions set forth in that statute.  The applicant states: "Those criteria are simply that the officer be entitled to basic pay, be in aviation service on a career basis ("qualified for aviation service"), and hold a designated aeronautical rating."  He then argues that the authority delegated to the Military Departments by the Secretary of Defense reiterates these criteria and leaves open to the Military Departments only the definition of which officers meet the statutory and Department of Defense criteria.  The applicant contends that once a class of officers has been determined by the Military Department to meet those criteria, the entitlement to ACIP vests.  The applicant then states:  "It is illegal for the Department of the Army to deny such pay to an otherwise eligible group of aviators because they are not formally members of the Aviation Branch, even though they meet all the requirements for aviation service, compete for and receive battalion and brigade aviation command positions and other key operational flying duties.”

	b.  Secondly the applicant contends that the 12 April 1984 policy is illegal because it purports to change a Secretary of the Army regulation.  He states the authority delegated by DOD Directive 7730.57 is delegated to the Secretary of the Army, which he implemented in Army Regulation 600-105, dated 1 January 1984.  The applicant contends that, although the Secretary of the Army may have approved establishment of Aviation as a separate branch of the Army on 12 April 1983, there is no indication that he approved the 12 April 1984 Aviation Service Policy.

4.  The applicant’s counsel contends that applicant has met his 12 and 18 year "gates".  Counsel also discusses in detail the issues of the case in order to clarify the issues and to respond to a Deputy Chief of Staff for Personnel (DCSPER) advisory opinion provided to the Army Board for Correction of Military Records (ABCMR).  Copies of the counsel's memorandum and the DCSPER advisory opinion are available to the Board and are quoted as appropriate throughout this case; therefore, they are not cited in detail at this point.

5.  The applicant’s military records show he enlisted in the U.S. Army Reserve on 29 October 1971.  He completed officer candidate school and was appointed a Reserve commissioned officer in the Armor branch and in the rank of second lieutenant on 25 September 1973.  The applicant completed the officer rotary wing aviator course in October 1976.  He has served in numerous command and staff positions in armor and aviation.  He was promoted to the rank of colonel effective 1 June 1996 and is still serving on active duty.

6.  Evidence of record shows that Aviation was established as a separate branch of the Army on 12 April 1983 and the applicant was notified of this fact by U.S. Army Military Personnel Center letter, dated 21 March 1984.  Paragraph 2c of that letter stated:  "The Aviation Career Incentive Act of 1974 stipulates that officers must be in aviation service on a career basis to be eligible for Aviation Career Incentive Pay (ACIP).  The creation of the Aviation Branch has caused the redefinition of aviation service.  An officer must possess SC [specialty code] 15 or 71, hold a pilot status code of 1 (not medically or otherwise disqualified for aviation service) and be in the Aviation Branch to receive continuous ACIP.  Therefore, officers not in the Aviation Branch may possess SC 15 or 71 as a specialty, but will not be entitled to continuous ACIP.  Officers not in the Aviation Branch will be entitled to monthly ACIP only when serving in operational flying positions."  Paragraph 3 of this letter stated that the applicant held "SC 15 in combination with SC 12" and recommended that he "select Aviation as [his] career branch."  The applicant indicated in his own hand on 25 April 1984 selection of option "C.  Remain in the Armor Branch with specialties of 12/15.  I understand that this option will not permit my entitlement to continuous Aviation Career Incentive Pay regardless of my gate status.  If I am currently drawing continuous Aviation Career Incentive Pay, my entitlement will cease as of the date I sign this letter regardless of my gate status.  This option will permit my entitlement to Aviation Career Incentive Pay only when assigned to an operational flying position."

7.  The DCSPER opinion recommended that the applicant’s request for continuous ACIP be denied and provided the following facts.  First, the issue in this case is the definition of aviation service and requirement to be "in the Aviation Branch to receive continuous flight pay."  The opinion cites Title 37 U.S.C. 301a(a)(3) [sic (2)] which “restricts aviation career incentive pay to officers who hold an aeronautical rating or designation and who remain in aviation service on a career basis” and Title 37 U.S.C. 301a(a)(3) which defines who may receive continuous monthly incentive pay as “an officer (except a flight surgeon or other medical officer) who is entitled to basic pay, holds an aeronautical rating or designation, and is qualified for aviation service under regulations prescribed by the Secretary concerned, is entitled to continuous monthly incentive pay (emphasis added).”  The opinion then cites Army Regulation 600-105 (Aviation Service of Rated Army Officers), dated 1 December 1983 (with an effective date of 1 January 1984) which "states in paragraph 3-1a (Rated Officer Inventory) that:  "The following officers are considered in aviation service- (2) Commissioned officer aviators who maintain a pilot status code (PSC) of 1 and hold a basic branch code (BC) 15 (Aviation) or area of concentration (AOC) of 67J (Medical Service Corps)."  (Analyst’s Note:  The preceeding cite in the DCSPER opinion actually quoted the 1994 version of Army Regulation 600-105, not the 1983 version as claimed.)  Finally the opinion asserts that the applicant relinquished his entitlement to continuous ACIP when he declined to select aviation as his career branch, that the Aviation Service Policy, 12 April 1984, was properly approved and implemented, and that , if qualified for continuous ACIP, the applicant met his “12 year gate but not his 18 year gate” which would have resulted in “termination of ACIP effective 940217.” [17 February 1994]. 

8.  Evidence of record shows the applicant requested an audit of his Total Operational Flying Duty Credit (TOFDC) which revealed he completed 111 months of TOFDC as of his "18-year gate".  The original DCSPER advisory opinion, which is undated, stated the applicant did not meet his 18-year gate, but this was in error and was subsequently corrected by a second DCSPER memorandum, dated 27 June 1997.

9.  The applicant’s Officer Record Brief shows that he has commanded at the troop, squadron, battalion and brigade level in aviation positions.  The applicant’s Total Operational Flying Duty Credit Worksheet shows his aviation service entry date (ASED) as 16 February 1976 and credit for 142 months of aviation service as of 3 December 1998.

10.  Title 37 United States Code section 301a (a)(3) states in part:  "an officer (except a flight surgeon or other medical officer) who is entitled to basic pay, holds an aeronautical rating or designation, and is qualified for aviation service under regulations prescribed by the Service Secretary concerned, is entitled to continuous monthly incentive pay in the amount set forth in subsection (b) of this section that is applicable to him."

11.  Army Regulation 600-105 (Aviation Service of Rated Army Officers), dated 1 December 1983 (effective 1 January 1984), defines the authorized rated inventory for the Army.  Specifically paragraph 3-1 defines the officers who are in aviation service and counted in the peacetime Army authorized rated inventory.  Subparagraph 3-1a(2) defines officers in aviation service as “All commissioned officers aviators on extended active duty who maintain PSC 1 and an aviation specialty code (15, 71, or 16J).

12.  Army Regulation 600-105 (Aviation Service of Rated Army Officers), dated 1 December 1983 (effective 1 January 1984), describes the qualifications for ACIP in paragraph 3-4.  This provision states that officers entitled to ACIP are those who are entitled to basic pay, have an aeronautical rating (or are being rained for one) and are qualified for aviation service to include current physical and aviation specialty codes.  Further, this paragraph describes entitlement to continuous ACIP by stating that Army aviators qualified for aviation service are entitled to continuous ACIP for 12 years following ASED [aviation service entry date] so long as qualified.  The remainder of this subparagraph is a chart which shows entitlement to continuous ACIP based on the number of months of TOFDC achieved at 12 years after ASED and 18 years after ASED.

13.  Army Regulation 600-105 (Aviation Service of Rated Army Officers), dated 15 December 1994 (effective 15 January 1995),  states in paragraph 3-1 (Rated Officer Inventory) that:  "The following officers are considered in aviation service- (1) Commissioned officer aviators who maintain a pilot status code (PSC) of 1 and hold a basic branch code (BC) 15 (Aviation) or area of concentration (AOC) of 67J (Medical Service Corps)."

14.  Army Regulation 600-105 (Aviation Service of Rated Army Officers), dated 15 December 1994, superseded Army Regulation 600-105, dated 1 December 1983.  Paragraph 3-5 of the new regulation defined officers entitled to ACIP as 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, and are qualified for aviation service.  The new regulation stated that Army aviators qualified for aviation service are entitled to continuous ACIP for 12 years following ASED so long as qualified.  This subparagraph of the new regulation refers to Table 3-3 (Gate Criteria for Continuous ACIP) which prescribes eligibility for continuous ACIP with different gates depending on the officer’s ASED.

15.  Army Regulation 600-105, dated 1 December 1983, shows in paragraph 
3-3b that Army aviators qualified for aviation service who complete 108 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.”

16.  Army Regulation 10-5 (Organizations and Functions: Department of the Army), dated 1 December 1980, provides that “the Army Staff shall—(1) prepare for such employment of the Army, and for such recruiting, organizing, supplying, equipping, training, serving, mobilizing, and demobilizing of the Army, as will assist in the execution of any power, duty, or function of the Secretary or the Chief of Staff;” and “(4) act as an agent of the Secretary and the Chief of Staff in coordinating the action of all organizations of the Department of the Army.”  Specifically, paragraph 2-16 states:  “The Army General Staff specifically assists the SA [the Secretary of the Army] in preparing and issuing directives and programs to accomplish such plans and policies, and in supervising the execution and implementation of these directives and programs.”  Finally, the regulation assigns “General Staff responsibility” to the DCSPER for “Military and civilian personnel management” and “Compensation and entitlement policy.”

CONCLUSIONS:

1.  The Secretary of the Army established the Aviation Branch effective 12 April 1983.  Subsequent to this action, Department of the Army officials redefined aviation service to require specialty code 15 or 71, a pilot status code of 1 (not medically or otherwise disqualified for aviation service) and Aviation Branch status in order to receive continuous ACIP.

2.  The Board noted the DCSPER opinion incorrectly cites AR 600-105, dated 1 December 1983 by stating that this regulation required “a basic branch code (BC) 15 (Aviation)” in order to be considered in aviation service.  Information available to the Board indicates that the requirement for BC 15 in order to be in aviation service and for entitlement to continuous ACIP did not appear in regulation until the 15 December 1994 version of Army regulation 600-105.

3.  Notwithstanding conclusion #2, above, the Board notes that each aviation rated officer at the time in question was advised of the change in the definition of aviation service and eligibility requirements for entitlement to continuous ACIP.  The applicant elected in his own hand on 25 April 1984 not to transfer from the Armor Branch to the Aviation Branch, but instead to remain in Armor Branch with specialties of “12/15” [Armor/Aviation].

4.  Contrary to the applicant’s contentions, there is no evidence that implementation of the policy requiring Aviation Branch status as a requirement for entitlement to continuous ACIP contravenes Title 37 or is outside the scope of authority of the Secretary of the Army or his Army Staff representatives.  In fact, Title 37 allows the “Secretary concerned” to prescribe regulations for “aviation service” and the Army Staff exercised its responsibilities to the Secretary of the Army and the Chief of Staff, as defined in Army Regulation 10-5 in effect at the time in question, by prescribing regulations for aviation service which included status in the Aviation Branch.

5.  The Board notes the applicant has completed almost 12 years in operational flying duty positions and has been selected by Department of the Army Command Selection Boards for command in aviation positions at the lieutenant colonel and colonel levels. 
6.  The Board also notes that the applicant met the TOFDC requirement for his 18-year gate and that, had the applicant been in the Aviation Branch at the time he reached his 18-year gate, then he would have been entitled to continuous ACIP through 22 years of TFOS calculated from 25 September 1973.  As a result the applicant would have been entitled to continuous ACIP until 25 September 1995.  After this date, the applicant would be entitled to ACIP on a “fly for pay” basis, i.e. he would receive ACIP only for each month he served in an operational flying position and performed the required flying hours to qualify for this pay.

7.  Notwithstanding the applicant’s decision in April 1984 to remain in the Armor Branch, the Board notes the Department of the Army continued to assign the applicant to operational flying positions throughout his career to include brigade level command of an aviation training unit.

8.  In view of the foregoing, the Board has determined that the applicant is not entitled to continuous ACIP based on his contention that the Army policy requiring membership in the Aviation Branch as a requirement for continuous ACIP is “illegal”.  However, the Board has determined that as a matter of equity and as an exception to Army Regulation 600-105 in this specific case alone, the applicant is entitled to continuous ACIP from the period 25 April 1984 through completion of 22 years of TFOS since the Army has consistently availed itself of his services in operational flying positions.

9.  The Board considered the applicant’s request for continuous ACIP from 1976. However, the Board noted that the applicant was advised of the redefinition of aviation service in March 1984, that he declined integration into the Aviation Branch on 25 April 1984 and that loss of his entitlement to continuous ACIP occurred on or after that date.  Therefore, the Board determined that error or injustice in this case could not have occurred prior to the date of the applicant’s declination of his integration into the Aviation Branch.

10.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing the individual concerned met his 18-year gate and, as an exception to regulation, he was entitled to continuous ACIP for the period beginning on 25 April 1984 and ending with completion of 22 years of TFOS.

2.  That the Defense Finance and Accounting Service, in conjunction with the Army Aviation Management Branch, conduct an audit of the flight records and pay records of the individual concerned to determine the amount of ACIP due him as a result of the Board’s decision to grant continuous ACIP from 25 April 1984 ending with completion of 22 years of TFOS based on meeting his 18-year gate as defined in Army Regulation 600-105, dated 1 December 1983. 

3.  That the individual concerned be paid the appropriate amount of ACIP due him based on the audit cited in paragraph 2, above.

4.  That the decision of the Board in this case did not change the service member’s status as an Armor Branch officer with specialties “12/15”.

5.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

TDH____  LLS_____  CWB____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC9607804/1998014506	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990106	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	128.04	
2.		
3.		
4.		
5.		
6.		

The applicant and his counsel contend that the Army implemented that law in Army Regulation 600-105 (Aviation Service of Rated Army Officers), dated 1 January 1984, which "defined aviation officers as all commissioned officer aviators on active duty who maintain PSC 1 and an aviation specialty code (15,…)".  Further counsel states that the 1984 memorandum which led the applicant's loss of continuous flight pay required SC 15 or 71 and pilot status code of 1, but also being "in the Aviation Branch" in order to receive continuous flight pay.  Counsel argues that the additional requirement that one must be in the Aviation branch apparently comes from Aviation Service Policy (as cited in the original DCSPER advisory opinion), and counsel states that this additional qualifier for entitlement to ACIP is invalid because it "directly contradicts AR 600-105, 1 January 1984."   

In specific, counsel argues that the policy which required the applicant to be in the Aviation Branch in order to receive continuous flight pay contradicts AR 600-105, dated 1 January 1984, because the regulation only required an aviation specialty, not the aviation branch.  Counsel argues further that Congress created this entitlement; therefore, only Congress through the Secretary of the Army can dissolve this entitlement.  Counsel states that once created an entitlement cannot be taken away by a lower entity (in this case the Aviation Branch); however, in effect, the Aviation Branch withheld the entitlement to continuous flight pay.  As a result, counsel contends that the election of "Option C" (to remain in Armor Branch with specialties of 12 (Armor) and 15 (Aviation)) was invalid since it conflicted with the Army Regulation which governed the Aviation Branch.  Thus, counsel concludes that the applicant was entitled to receive continuous flight pay so long as he maintained an aviation specialty.