MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  8 February 2001
	DOCKET NUMBER:  AR2000047542

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

	Mr. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Donald P. Hupman		Member	
	Mr. George D. Paxson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS: That his records be corrected to show that he is not subject to an Active Duty Service Obligation (ADSO).

APPLICANT STATES: Applicant defers to counsel.

COUNSEL CONTENDS: That the training the applicant received in 1999 at Simuflite, Inc., Dallas, Texas and Flight Safety International, Inc., Wichita, Kansas and again at Simuflite, Inc., in 2000 was civilian training.  He contends that an ADSO cannot be imposed by DA Form 1610 (Request and Authorization for TDY [temporary duty] Travel of DOD [Department of Defense] Personnel).  He concludes by referencing another soldier’s similar requests, in which relief was granted.  Counsel contends that Army Regulation (AR) 621-1 (Training of Military Personnel at Civilian Institutions) applies in this case.

EVIDENCE OF RECORD: The applicant's available military records show:

During the period 27 February to 14 March 1999, the applicant requested and attended military contract training ($12,500 plus $3,183 per diem) by Simuflite, Inc., in Dallas, for the Gulfstream III. 

During the period 11 to 23 July 1999, he requested and attended military contract training ($16,500 plus $3,888 per diem) by Flight Safety International, Inc., Wichita, for UC-35A Qualification Course.

During the period 13 February to 6 March 2000, he requested and attended military contract training ($16,500 plus $4,360 per diem) by Simuflite, Inc., in Dallas, for the Gulfstream IV.  His DD Form 1610, dated 3 February 2000 was annotated “Additional Active Duty Service Obligation of 3 yrs is incurred under provisions of AR 351-100.”  On the same date, the order was amended to read “AR 350-100”. AR 350-100 is entitled Officer Active Duty Service Obligations.

On 16 October 2000, the Commander, Total Army Personnel Command (PERSCOM), Warrant Officer Division opined that AR 350-100 was the pertinent regulation in this case. His orders were not properly annotated to show the ADSO in the case of the first two periods of training; however, in the case of the Gulfstream IV training, advance notification of the 3 year ADSO was made in his orders.  His records correctly reflect a service obligation until February 2003.  Finally, the other individuals mentioned in his case all had ADSO’s that were waived in each case, based on not receiving prior notification of the required ADSO.

On 29 November 2000, the PERSCOM opinion was provided to the applicant, through his attorney, for acknowledgment/rebuttal.

On 4 December 2000, counsel rebutted the opinion by asserting AR 621-1 was the dominant directive in the determination of the case, since this was civilian training.  Also, he takes exception to imposition of ADSO in the TDY orders.

In late 1999, the Commander, PERSCOM notified all aviators that completion of the UC-35 and the Longbow Aircraft Qualification Course that they incurred a     3 year ADSO beginning from the ending date of the course.

AR 621-1 governs selection of personnel for fully funded courses at civilian institutions for 60 days or more.  This regulation specifies that ADSO’s are assigned based on the length of the training, i.e., three times the length of this training.

AR 350-100 governs ADSO’s of personnel attending military or contracted military training at either military or civilian training facilities.  This regulation has precedence over all other regulations regarding ADSO’s.  The regulation specifies that there is a requirement of a 3 year ADSO for the training received in this case.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  There is no conflict in the regulations concerned.  AR 350-100 pertains to military training of which “contracted” military training at a civilian institute is included, and appropriate ADSO’s.  This regulation applies in the instant case and prescribes a 3 year ADSO for the training received.

2.  The applicant’s counsel has mistakenly assumed the training was civilian as opposed to military (or military contract training), and that AR 621-1 is the governing regulation, not requiring a 3 year ADSO.

3.  This Board reviews each case on its own merits.  Counsel’s references to any other cases adjudicated by this Board are not comparable, since this individual was notified in advance of the required ADSO.  The Board further concludes that the applicant was a senior warrant officer with lengthy experience and knew, or should have known, the ADSO requirement for the training he sought and received.  Also, in this case the applicant was notified in advance of the training of the 3 year ADSO, and completed the training.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________ GRANT

________  ________  ________ GRANT FORMAL HEARING

__jl__  ___dh_____  __gp______ DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000047542	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010208	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.100	ADSO	
2.		
3.		
4.		
5.		
6.