RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04758 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. The Flying Evaluation Board (FEB) findings issued on 13 April 2010, which disqualified him from aviation service and forbade him to wear the pilot badge be reversed. 2. He be reinstated into the Air Force as a pilot. 3. He be allowed to train to fly the UH-lN helicopter. 4. His Promotion Recommendation Form (PRF) be changed from a “Do Not Promote” to a “Promote” recommendation. 5. His records reflect that he was promoted to the grade of captain (O-3) as a result of the Calendar Year 2010 (CY10) Central Selection Board (CSB). APPLICANT CONTENDS THAT: The applicant’s counsel presents the following major contentions: Unit leadership did not follow the assignment policies and guidance as outlined in Air Education and Training Commander Instruction (AETCI) 36-2205, Volume 4, Formal Flying Training Administration and Management - T-1, T-6, T-37, T-39, T-43, and UH/TH-1H, dated 1 June 2009. He was unfairly denied his first assignment choice to fly UH-1N helicopters because he did not participate in certain activities during Specialized Undergraduate Pilot Training-Helicopter (SUPT- H). He ranked higher than those students in his class who received the available UH-1N assignments. When he took action to correct this injustice through the only means then available to him, the FEB subsequently disqualified him from aviation service and forbade him from wearing the pilot badge. Consequently, his rater gave him a “Do Not Promote” recommendation and he was not selected for promotion to the grade of captain. In support of his requests, the applicant provides copies of his AF Forms 475, Education/Training Report; AETC Form 173, Student Record of Academic /Nonacademic Counseling and Comments; AF Form 709, Promotion Recommendation; Office Performance Report, Letters of Recommendation, Air Force Achievement Medal Citation, FEB Notification, FEB Proceedings, Nonselection for Promotion memorandum, Merit Assignment Selection System (MASS) Ranking, and various other documents related to his requests. His complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 31 July 2007, the applicant entered the Regular Air Force. According to AETC Form 173, Student Record of Academic/Nonacademic Counseling and Comments, dated 2 February 2010, the applicant requested to be permanently removed from the HH-60G Mission Pilot Upgrade Qualification course. The applicant was counseled on the potential consequences of his actions and was given two weeks to reconsider his decision. On 18 February 2010, the applicant stood by his decision to be removed from the aforementioned course. In a letter to the wing commander dated 19 March 2010, the applicant requested that he be eliminated from the HH-60G Mission Pilot Upgrade Qualification course and instead be enrolled in the UH-1N Mission Pilot Qualification course. In a letter dated 19 March 2010, the applicant was directed to meet an FEB which would convene to develop and consider evidence concerning his professional qualifications as a pilot and make recommendations regarding his future flying duties. On 13 April 2010, an FEB disqualified the applicant from aviation service and forbade him to wear the pilot badge. In a memorandum dated 29 April 2010, the applicant’s senior rater notified him that he did not recommend he be selected for promotion. He further advised the applicant that if he felt the report was inaccurate, unjust or unfairly prejudicial he could write a memorandum to the Management Level (ML) with his concerns. Via a memorandum dated 4 May 2010, the applicant submitted a letter to the ML disagreeing with the “Do Not Promote” recommendation. On 5 October 2010, the AETC commander agreed with the FEB findings that the applicant be disqualified from aviation service and that he be forbidden to wear the pilot badge. On 8 October 2010, the wing commander informed the applicant that he was considered but not selected for promotion to the grade of captain by the CY 2010B CSB. On 23 February 2011, the applicant submitted a request to separate using the “Voluntary Separation” application. The applicant's commander recommended approval and forwarded the request to the applicant's wing commander who also recommended approval. On 27 April 2011, the Secretary of the Air Force Personnel Council accepted the resignation tendered by the applicant for “Miscellaneous Reasons” and directed an honorable discharge from the Air Force effective 1 September 2011. He served 4 years, 1 month and 1 day of active duty. AIR FORCE EVALUATION: AF/A30-A1F recommends denial of the applicant’s requests to reverse his disqualification from aviation service and allow him to wear the pilot badge. The FEB is the final authority and they determined the applicant was permanently disqualified from aviation service and prohibited from wearing the pilot badge. The FEB was conducted in accordance with (IAW) AFI 11-402, Aviation and Parachutist Service, Aeronautical Ratings and Aviation Badges. The AETC commander executed his right as the final approval authority for the FEB. The AETC commander’s letter, dated 5 October 2010, states “I agree with the findings and recommend the applicant be disqualified from aviation service and that he be forbidden to wear the pilot badge.” This statement fulfilled the requirements in AFI 11-402. The complete A30-A1F evaluation is at Exhibit C. AFPC/DPSIDEP recommends denial of the applicant’s request to change his PRF from a “Do Not Promote” to a “Promote” recommendation. The applicant has not provided sufficient evidence to substantiate the accusations that the PRF was written with bias or that the subject PRF was inaccurate or in error at the time it was written. To grant the applicant’s request would circumvent the senior rater's promotion recommendation. The complete DPSIDEP evaluation is at Exhibit D. AFPC/DPSOR recommends denial of the applicant’s request to be reinstated in the Air Force. The applicant voluntarily requested separation that was properly coordinated through the appropriate channels and approved by the appropriate discharge authority. Therefore, the discharge to include the separation code, narrative reason for separation and character of service was appropriately administered and within the discretion of the discharge authority. The complete DPSOR evaluation is at Exhibit E. AETC/A3F does not make a recommendation. The applicant and his counsel assert the unit did not follow established policy and guidance when making the assignment. The sole intent for this advisory is to review and affirm the MASS. The fundamental declaration of the application is that the FEB would not have occurred had the applicant been assigned to his first aircraft of choice at the completion of SUPT-H. MASS is a command-directed performance tool provided to aid commanders in student advanced track selection, Major Weapons System (MWS) assignment, and final graduation order of merit. Part of the leadership challenge is managing expectations during the assignment process, as commanders must make some difficult decisions in regards to follow-on aircraft assignments. As the applicant was highly ranked in his class, it is predictable he would not be assigned to the less demanding aircraft. Commanders must keep the needs of the Air Force as a primary goal. Individuals drawn to be aircrew members are by their nature, high achievers and very competitive. The merit ranking system provides commanders with a performance-based tool to aid in the challenging decision process when making assignment matches before graduation and winging. The complete A3F evaluation, with attachment, is at Exhibit F. AFPC/JA recommends denial and concurs with the conclusions and recommendations reached in the aforementioned advisories. The evidence shows that the applicant voluntarily accepted the HH-60G assignment, but then decided to eliminate from this formal course of training so he could be assigned to UH-lH aircraft training. The applicant argues that his actions were to better the Air Force by correcting an atmosphere and procedures that were not only unfair to him but which actually had the potential to put unsafe unqualified persons a the control of aircraft. This self- serving contention adds to the overwhelming evidence that applicant took a totally selfish approach to the helicopter training, going so far as to drop out of the training that the Air Force had already determined was in its best interest. The complete JA evaluation is at Exhibit G. APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The advisory opinions address the various components of the applicant’s case. However, the AETC/A3F and AFPC/JA advisory opinions are most directly relevant to the applicant’s primary contention that he was unjustly and erroneously denied the aircraft assignment that he had earned. JA specifically refers to the A3F advisory and effectively adopts it as written. JA also unfairly mischaracterizes counsel’s argument in favor of the applicant’s case calling it a “self-serving contention.” Of course it is “self-serving,” it is an argument in favor of a strongly held position that the applicant believes in. Counsel earnestly expects the Board to look beyond this advisory and decide for itself the evidence in this case. Counsel specifically refers the Board to the many character letters included with the original application which directly rebut JA's statement that the applicant took a totally selfish approach to helicopter training and resigned after not getting his way. The applicant left the Air Force with hopes of flying for a sister service. Unfortunately, the FEB outcome has foreclosed that possibility for the applicant; all the more reason for the Board to correct the error and injustice in this case. The JA advisory opinion is not based on the Air Force instruction in effect in this case. JA and A3F both incorrectly cite AETCI 36-2205, Volume 4, dated 24 July 2012. AETCI 36-2205, Volume 4, dated 1 June 2009, was in effect and applied to the applicant. Therefore, without a doubt, both A3F and JA advisory opinions should be disregarded because they do not provide meaningful guidance as to how the Board should interpret and apply the controlling Air Force instruction. On the other hand, the actual instruction in effect at the time completely supports the applicant’s case. AETCI 36-2205, Volume 4, dated 1 June 2009, is explicit at paragraph 7.10.2.2.4.2 when it says, “Ensure the top 10 percent of graduates receive their first choice, if available.” This is a far cry from “if available, the top 10 percent of graduates should receive their first choice.” Moreover, AETCI 36-2205, Volume 4, dated 1 June 2009, paragraph 7.10.2.2.4.3, explicitly requires that MWS assignment procedures “use the rank order listing and the student's AF IMT 3849 to provide the best match of the student's desires with available MWS aircraft” and “All students receive their first choice of MWS aircraft, if available" and “if a student's first choice is not available, go to the second (third, etc.) choice until a match is found.” In fact, it should be noted again that the Summary of Changes at the beginning of the latter version of the instruction specifically states that paragraph 7.10.2.2.4.3 was changed from the 1 June 2009 version of the instruction to the 24 July 2012 version. This change was to take out the sentences which stated “all students receive their first choice of MWS aircraft, if available” and “if a student's first choice is not available, go to the second (third, etc.) choice until a match is found.” Obviously, the applicant’s case motivated this change and A3F knows that the instruction in place for the applicant required that he get his first choice of available aircraft. In the applicant’s case, there is simply no wiggle room: if the aircraft is available, he gets it, period. Counsel sought input from various flying training squadron commanders on how they executed the MWS aircraft assignment process at the time of the applicant’s case. Neither commander indicated that deviations from the instruction were authorized or made for “needs of the Air Force.” Instead, these commanders confirm that AETCI 36-2205, Volume 4, dated 1 June 2009, was closely followed throughout the training Air Force. The applicant’s MWS aircraft assignment process, on the other hand, was an aberration that should not have taken place. Clearly, the applicant suffered error and injustice when he was denied the aircraft assignment he earned. If he had correctly and rightfully been assigned to the UH-IN helicopter, the FEB and “do not promote” recommendation and promotion pass-over would not have ensued. The Board’s attention to the extremely positive character references will demonstrate that the applicant does not have habits, traits of character, or personality characteristics that make it undesirable for him to serve as an aircrew member in flying duties. Quite the contrary is true. Counsel’s response, with attachments, is at Exhibit I. ADDITIONAL AIR FORCE EVALUATION: AETC/A3F again does not make a recommendation. MASS policy and guidance as applied in the applicant’s case is described in AETCI 36-2205, Volume 4, dated 1 June 2009. Track and MWS assignment processes consider three elements in order of precedence. First and foremost is “Needs of the Air Force;” second is assignment availability; third is students’ desires. As described in the instruction, squadron commanders and flight commanders assemble to assess student performance, rank students in merit order, and make recommendations for assignments. At this point in the process, the final determination of flight commander ranking is made using the matrix provided in AETCI 36-2205, Volume 4. The only individuals who have the best opportunity of a first aircraft of choice are the top 10 percent of graduates. From AETCI 36-2204 Volume 4, Section 7.10.2.2.4.2, “Ensure the top 10 percent of graduates receive their first choice, if available.” Wing commanders make the final decision on the best match of student skill, potential and desire with the available aircraft. AETCI 36-2205 Volume 4, Chapter 7, references “best match of the student’s skills, potential, desires and available training quotas or aircraft”. There is likely no “perfect match,” where all students receive their first choice and their skills match with their assigned follow-on aircraft. Supervisors and commanders must have some flexibility in their decision process in order to meet the needs of the Air Force. A “best match” decision will not be a perfect match. Matching the right student to the right aircraft, will mean some students may be disappointed in the final assignment process. The needs of the Air Force do come first. The complete A3F evaluation, with attachment, is at Exhibit J. APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: A3F states that commanders use MASS as a “start point” in making decisions on aircraft assignments. In making this statement, A3F underlines its assertion for “clarity and emphasis;” however, they do not cite to any particular specific provision of AETCI 36-2205, Volume 4, dated 1 June 2009, to support this assertion. Instead, A3F follows with another general assertion that chain-of­command oversight and management is essential to the aircraft assignment process and that the wing commander makes the final decision on the best match of student skill, potential, and desire with available aircraft; this despite the clear mandate of AETCI 36- 2205, Volume 4, Paragraph 7.10.2.2.4.3., to use the “rank order listing,” or MASS, and the student's AF IMT 3849, PME/AIT/RTFB/Officer Worksheet, to “provide the best match of the student's desires with the available MWS aircraft” and that “all students receive their first choice of MWS aircraft, if available.” Paragraph 7.1.1. makes clear that there are three specific elements of the MWS assignment process: (1) the needs of the Air Force; (2) assignment availability; and (3) student desires. Obviously, assignment availability is primarily a function of available aircraft for a given pilot training class. Just as obvious, student desires are annotated on his or her AF IMT 3849. With respect to each of these two elements, commanders do not make decisions. The only remaining element of the assignment process is the needs of the Air Force and this is where pilot training squadron and flight commanders actually do make decisions. AETCI 36-2205, Volume 4, paragraph 7.1.2., explicitly states that to aid these commanders in making decisions with regard to what best suits the needs of the Air Force, MASS, a command directed performance measurement tool is provided which provides student relative ranking to be used for MWS assignment decisions. Counsel agrees that paragraph 7.1.3. does provide that the wing commander or, in the case of the HELO Assignment Selection Process, the operation group commander, is the approval authority for all MWS assignment decisions but emphatically notes that this same paragraph explicitly provides that any deviation from the requirement to use MASS as required by the instruction must originate at the wing commander or operation group commander level for review by A3F. This is a far cry from A3F’s general assertion that the wing commander makes the final decision on the best match of student skill, potential, and desire with available aircraft. The more accurate reading of the instruction, is that MASS must be used to provide the best match of the student's desires with the available MWS aircraft to ensure that all students receive their first choice of MWS aircraft, if available, and that the wing commander or operations group commander, is tasked with ensuring through the approval process that the instruction's mandate was followed unless there is a need for a deviation which then originates at the level of the wing commander or operations group commander. In the applicant’s case, the deviation from the mandate of the instruction did not originate at the operation group commander level. Instead, his flight commander made the deviation in violation of the instruction without authority or approval. MASS generates a merit ranking which is an overall assessment of the student's airmanship and capability based upon demonstrated performance and includes the flight commander's assessment of the student's flying skills, leadership, teamwork, officership, attitude, and potential to complete follow-on training. Therefore, the notion that a student's potential to complete follow-on training may be grounds for deviation from the mandates of the instruction is not supported. A student's potential to complete follow-on training is already incorporated into the MWS assignment selection process through the use of MASS and is not an independent consideration for deviating from the instruction, as was done in the applicant’s case. Counsel also disagrees that it was permissible for the applicant’s flight and squadron commander to assign students ranked below him to his desired MWS assignment as function of their experience and judgment on a best match. This is not an authorized deviation from the mandates of the instruction. These commanders' experience and judgment was expected to be exercised through their development of the MASS merit rank ordering when they had the opportunity and duty to provide their assessment of each student's flying skills, leadership, teamwork, officership, attitude, and potential to complete follow-on training. If the lower ranking students did not have the potential to complete follow-on training in all of the aircraft in their class's drop, they should not have been graduated. In the final analysis in this case counsel asks the Board to carefully consider that the version of AETCI 36-2205, Volume 4, that was in effect at the time of the controversy in this case explicitly mandated that the applicant should have been assigned to a UH-IN helicopter because of his merit order ranking in MASS and his expressed desire for this assignment above all others. It is clear that AETCI 36-2205, Volume 4, was not followed despite the requirement that compliance was mandatory. Hence, the FEB findings and recommendations were erroneous because they failed to see the clear violation of AETCI 36-2205, Volume 4, in this case. Counsel’s complete response is at Exhibit L. In a separate letter to the Board dated 22 February 2015, the applicant reiterates how complex his case is and how difficult it has been to summarize the circumstances pertaining to his petition. He writes at length about the Air Force Core Values and how they set the standard for the behavior that should be exhibited by all airmen. His primary focus is the importance of the first core value; he asserts that the lack of integrity is relevant to his petition because nothing destroys a unit’s effectiveness quicker than a lack of integrity on the part of its leadership. He should have spoken out sooner about the misconduct he observed and he should have answered the FEB member's question about remaining in HH-60s in the affirmative. Nevertheless, his contention is and always has been that there was a breach of integrity in the assignment process; therefore, he requested an FEB to review this process. He has maintained from the beginning, that he is willing to serve in any airframe, in any capacity, given a fair and equitable assignment process. His actions were not reflective of someone who lacks character, but rather someone who was guided by it. The applicant’s complete response is at Exhibit M. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. After a thorough review of the evidence of record and the applicant's complete submission, we are not persuaded that relief is warranted in this case. The applicant's assertions that his unit did not follow the assignment policies and guidance as outlined in AETCI 36-2205, Volume 4, is duly noted; however, we are not persuaded by the evidence, to include the numerous character reference letters, that the FEB was unjustly convened or that the actions taken to disqualify him from aviation service and from wearing the pilot badge were inappropriate. As such, we find no basis to reverse the FEB’s decision in his case. Given the applicant’s remaining requests for relief are all predicated upon the reversal of the actions taken by the FEB, we also find no basis to grant his remaining requests. Therefore we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt the rationale expressed as the basis for our conclusion the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice. In view of the above and in the absence of evidence to the contrary, we find no basis to recommending granting any of the relief sought in this application. THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. The following members of the Board considered this application in Executive Session on 15 January 2015 and 31 March 2015, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR BC-2013- 04173 was considered: Exhibit A. DD Form 149, dated 30 September 2013, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, USAF A30/A1F, dated 7 January 2014. Exhibit D. Letter, AFPC/DPSIDEP, dated 11 April 2014. Exhibit E. Letter, AFPC/DPSOR, dated 24 April 2014. Exhibit F. Letter, AETC/A3F, dated 10 June 2014. Exhibit G. Letter, AFPC/JA, dated 19 June 2014. Exhibit H. Letter, SAF/MRBR, dated 27 June 2014. Exhibit I. Letter, Counsel, dated 25 August 2014, w/atchs. Exhibit J. Letter, AETC/A3F, dated 13 November 2014, w/atch. Exhibit K. Letter, SAF/MRBR, dated 20 November 2014. Exhibit L. Letter, Counsel, dated 17 December 2014. Exhibit M. Letter, Applicant, dated 22 February 2015.