RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00305 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: The Flying Evaluation Board (FEB), which removed him from Fixed Wing Training, be removed from his records. His records be corrected to reflect he was awarded the wings and rating of a helicopter pilot. His records be corrected to reflect he was awarded the wings and rating as a fixed wing pilot. APPLICANT CONTENDS THAT: Through counsel, the applicant contends that he was not treated justly by the Air National Guard when they required him, arbitrarily and capriciously, to attend Fixed Wing Qualification (FWQ) Training prior to attending predator training. In 2008, the applicant, a former Army helicopter pilot and decorated combat veteran, decided to change his status with the Texas Air National Guard (hereinafter TXANG) when they promised to send him to training to become a Predator (UAV/RPA) pilot, via the Air Force MQ-1 Predator Pilot Sensor Officer Basic Course (PSOBC). In February 2008, the TXANG informed him that, as a "Helicopter Only" rated pilot, he would not be required to undergo formal fixed wing training, but would be ordered to travel directly to Predator training, which was scheduled for 10 March 2008. At that time, entry into Predator training was open to non-rated personnel for the Air Force. Apparently, and unknown to the applicant, the Air National Guard (ANG) decided not to follow the Air Force Predator entry requirements as outlined in AFI 11-402, Aviation and Parachutist Service Aeronautical Ratings and Aviation Badges, instead they decided he could not enter Predator training without first completing a fixed wing aviation training program; FWQ. Shortly after completing the Joint Fire Power Course, a prerequisite to PSOBC, the applicant was directed to return to TXANG and told that, in fact, he would be required to first complete a fixed wing training program. Thus, pursuant to his agreement, he was sent to the training at Laughlin Air Force Base, Texas, for fixed wing training. The applicant soon discovered that the fixed wing program was not equipped, designed, or prepared to handle rated helicopter pilots who were in the pipeline for Predator training. On 21 October 2008, the applicant satisfactorily completed the first phase of FWQ in a T-6. He was then advised he had to complete a second phase of FWQ training in the T-38, amended to the T-1, both jet aircrafts. Normally, the second phase of FWQ is designed to prepare pilots for the type of aircraft they will eventually fly, which was unnecessary for future Predator pilots. He encountered some difficulties in T-1 training, connected in part with the hostile environment he experienced due to the lack of a formal FWQ program for rated helicopter pilots. Even though he was initially led to believe he passed a T-1 navigation check-ride on 27 March 2009, he was subsequently informed that he failed the check-ride. After the confusion was resolved, he returned to the navigation phase of T-1 training. On 26 June 2009, he flew his mission familiarization check- ride, the final end-of-course T-1 check-ride required before graduating from FWQ. Despite irregularities in the scoring of his ride, he was told he failed the check-ride. This meant he had to fly a Mission Familiarization "Elimination" check-ride with his squadron commander. It was flown on 1 July 2009. As a result of receiving a failing score, he was scheduled to meet a Flying Evaluation Board (FEB). By unanimous vote, the FEB determined that the applicant’s training lacked appropriate supervision and structure to assure his success in the T-1 section Fixed Wing Qualification (FWQ) training and negatively impacted his training. As a result of this and other factual findings, the majority of the three- member panel recommended the applicant be reinstated and given another opportunity to demonstrate the ability to meet course standards." In a minority recommendation, one member of the FEB expressed the opinion that he should be eliminated from FWQ, but that he should nonetheless be allowed to complete "the MQ-1 [Predator] training program." The applicant, confronted with the option of re-entering FWQ only at Laughlin AFB, declined to exercise that option. Because there was no written NGB policy that required him to complete FWQ prior to entering Predator training, he felt that such a policy, which was inconsistent with Air Force policy, was arbitrary, capricious and unreasonable. On 3 and 4 June 2010, a new FEB was convened based on his decision not to further participate in FWQ at Laughlin AFB, TX. At this new FEB, he was given an opportunity to reconsider his decision to not undergo further FWQ training at Laughlin. After reflecting upon this possibility overnight, he returned to meet the FEB the next day with a decision that, despite his original misgivings about whether he would be treated fairly, he would proceed with training at Laughlin. After receiving the applicant’s decision, the second FEB, in a split decision, recommended his elimination from FWQ training. After the hearing, the applicant, through counsel in a letter dated 21 July 2010, challenged the impartiality of the second FEB, noting that the Senior Board Member (SBM), one of the members who voted with the majority, was serving under the squadron commander who was vigorously attacked by the applicant’s lawyers in the first FEB and who testified in the second FEB. The SBM should have recused himself from participation as a board member because, as a minimum, it appeared that he lacked impartiality. On 21 January 2011, the Commander of the Air National Guard accepted the second FEB's recommendation, effectively denying relief from the claim that the SBM of the second FEB should have recused himself from participating as a board member. Subsequently, the applicant separated from the TXANG because of the NGB determination that he was not eligible to enter Predator training without first completing FWQ. His position with the TXANG had been contingent upon successfully qualifying as a Predator pilot. The applicant believes that he successfully completed FWQ and T-1 training. He believes that his squadron commander, for whatever reason, unjustly failed him in the final FWQ check- ride. Despite the failing grade he received on his last two check-rides, the evidence presented at the FEB actually reflects satisfactory completion of T-1 training and that he should be awarded his wings and the appropriate aeronautical rating. Finally, he feels it was unjust to direct him to stop wearing the Air Force Senior Wings, which had been awarded by the Aviation Review Board and the XXX Reconnaissance Wing, where he was assigned when he was selected to attend Predator training. He never sought, nor is he now seeking a jet rating in the TXANG. He simply wanted to serve as a Predator pilot and desires that his records be corrected to reflect his actual aviator qualifications. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is a former member of the TX Air National Guard, who was discharged on 23 June 2011 and appointed as an officer in the United States Army effective 24 June 2011. According to documentation provided by the applicant on 20 October 2009, an FEB was convened after the applicant failed the final T-1 check ride of the Fixed Wing training. On 22 October 2009, the majority recommended the applicant be reinstated and given another opportunity to demonstrate the ability to meet course standards. The minority found reinstatement was not warranted due to the applicant’s difficulties throughout the T-1 portion of the FWQ program and felt reinstatement was not warranted. The FEB also stated, due to the demeanor of the witnesses and the testimony given, the situation at Laughlin would be problematic and the FEB unanimously recommended the needs of the Air Force would be best facilitated by completion of FWQ training at another location. Based on the applicant’s withdrawal from FWQ training a second FEB was convened on 3 June 2010. On 4 June 2010, the majority of the FEB members found the applicant should be eliminated from aviation service based on his invocation of the Drop on Request option from the FWQ program as per AFI 11-402, paragraph 4.3.7.3. However, the minority opined the applicant should be reinstated in the previously approved training program. On 21 January 2011, the Director, Air National Guard concurred with the FEB’s recommendation that the applicant be removed from Air Force aviation service. The action also prohibited him from flying Air Force aircraft on active duty, with the Air National Guard, or the Air Force Reserves. He was also prohibited from wearing United States Air Force pilot wings. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: NGB/A3 recommends denial. In 2008, the applicant, a former Army helicopter pilot, joined the Air National Guard to fill a position as a Predator (RPA) pilot. At that time, the National Guard Bureau (NGB) required all RPA operators possess a USAF fixed wing rating (FWQ) in order to attend RPA training due to the unknown future of this new career field. The ANG chose to be more restrictive than AFI 11-402 and exceptions were only considered when the member had a significant amount of fixed wing pilot in command flight time. The applicant attended fixed wing training in April 2008. He was eliminated from FWQ in T-1's. As a result of failing a formal training course, he was scheduled to meet a Flying Evaluation Board (FEB). In 2009, this FEB reinstated the applicant into training for another opportunity to demonstrate the ability to meet course standards. The staff at Laughlin and the Numbered Air Force (NAF) worked together to construct a T-l requalification program. The training would be conducted at Laughlin by NAF Instructor Pilots (IPs) due to the applicant’s concerns about receiving fair treatment by the Laughlin IPs. The applicant decided not to attend this formal requalification training course and to withdraw from training. Had he chosen to attend the requalification training offered, he would have graduated and been awarded the fixed wing pilot aeronautical rating. The applicant was counseled about returning and finishing the training, as well as the correlation of limiting his aviation service. In accordance with AFI 11-402, an FEB was convened as the applicant’s decision was an attempt to limit aviation service. AFI 11-402 clearly states, in paragraph 4.3.7.3: Attempts to limit aviation service, such as a Drop On Request (DOR) from formal training courses, requests for voluntary disqualification based on personal desire to terminate aircrew duty, or requests to decline a particular assignment following formal training indicating there is no evidence of an error or an injustice, is a valid reason to convene an FEB. In addition, AFI 11-402 is clear in paragraph 4.5.6.3, where it states, “Disqualification is appropriate for an aircrew member who attempts to DOR from formal training, or attempts to place limits on aviation service or future assignments." The FEB in 2010 determined the applicant should be eliminated from AF aviation service. In addition, he was prohibited from wearing the USAF pilot wings. The applicant made a conscious decision to withdraw from training and in turn, limited his aviation service. The complete NGB/A3 evaluation, with attachment, is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluations was forwarded to the applicant on 21 May 2015 for review and comment within 30 days (Exhibits D and E). As of this date, no response has been received by this office. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice warranting some measure of relief. While the board does not find sufficient evidence of error or injustice to warrant granting applicant’s request to award him the rating and wings of a fixed wing pilot, the board does find that there are extenuating circumstances that contributed to his failure to complete fixed wing training. At the heart of this case appears to be the findings and recommendations of two FEBs the applicant met. The applicant met the first FEB in October 2009 after being eliminated from fixed wing training upon failure of his Mission Familiarization Checkride. It is the belief of this board that the findings of the first FEB are instructive and significant in determining whether the applicant has been the victim of error or injustice. The board finds the following summarized findings notable: a. The FEB found unanimously the applicant’s training was negatively impacted by a lack of appropriate supervision and structure. b. The applicant’s final ride seemed inconsistent with the grade received throughout the airdrop phase of training and was significantly below his performance on previous rides. c. The applicant previously graduated from a formal flying training course in the Army and accumulated over 1500 flying hours, including 900 in combat. d. The FEB found that the applicant had a reasonably high chance of success in completing the follow-on training to the fixed wing training. Based on its findings, the FEB, by majority vote, recommended the applicant be reinstated into fixed wing training. Interestingly, the minority member while not recommending reinstatement believed the applicant would successfully complete the program. Also significant is the unanimous recommendation of the FEB that if reinstated, the needs of the Air Force would be best facilitated by completion of fixed wing training at another location. The board notes that while the Air Force moved to reinstate the applicant to training, it elected not to heed the recommendation to send the applicant to another location. Instead, as offered in the advisory prepared by NGB/A3, the base and Numbered Air Force staff worked together to construct a requalification training program to be conducted at the same location, albeit with a different cadre of instructors. When offered this remedy, the applicant verbally expressed his reservations and eventually advised his commander he would not accept the training. As a result of the applicant’s actions, his command moved to place him before a second FEB based on what was considered to be an attempt by the applicant to limit aviation service by initiating a Drop on Request (DOR) from the training. The second FEB found that the applicant invoked the DOR option. A majority of the FEB then recommended the applicant should be eliminated from aviation service. This board finds that while technically the applicant may have invoked the DOR option, in the view of the board the applicant was placed in an untenable position without a viable option. It is noted the applicant did eventually indicate he would attend the training although with understandable reservations. After considering the entire evidence of record to include the significant findings of the first FEB, it is the conclusion of the board that only providing the applicant the option of reentering training at the same location constituted an injustice. The Air Force OPR has not provided rationale for why the first FEB’s recommendation to move the applicant to a different training location was or could not be accommodated. It does not appear the command was focused on providing the applicant with a reasonable opportunity to complete the fixed wing training. After weighing the significant adverse impact upon the applicant of a DOR finding along with sequence of events leading to the DOR, the board believes on balance the impact on the applicant is disproportionate to the actions he took. The board does not believe the applicant’s actions, when considering his overall aviation record, to include time in combat, should result if his total disqualification from all aviation service. Therefore, in the interest of justice, we believe the applicant’s records should be corrected to the extent indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that the deciding official (Director, ANG) agreed with the Flying Evaluation Board (FEB), that the applicant voluntarily terminated training but found that such termination was not a drop on request (DOR) as contemplated under AFI 11-402, Aviation and Parachutist Service Aeronautical Ratings and Aviation Badges, paragraph 3.7.1.2.4, and that given the circumstances the applicant be terminated from training but allowed to retain previous helicopter wings and ratings. The following members of the Board considered AFBCMR Docket Number BC-2014-00305 in Executive Session on 9 July 2015 under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-00305 was considered: Exhibit A. DD Form 149, dated 7 Jun 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, NGB/A3, undated, w/atch. Exhibit D. Letter, SAF/MRBR, dated 21 May 15. Exhibit E. Letter, SAF/MRBR, dated 21 May 15.