RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02210 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. The Flying Evaluation Board (FEB) be removed from his records. 2. His flying record be changed to reflect an administrative withdrawal from the KC-10 Pilot Instructor Course. 3. His disqualification from aviation service be rescinded and his full flight status be reinstated effective 20 May 10. APPLICANT CONTENDS THAT: The Progress Review Board (PRB) was improperly triggered resulting in an unjustly convened FEB. As a result, he was disqualified from further aviation service when such disqualification had no basis in existing Air Force regulations. At the time, there was no formal training syllabus for the KC- 10 Formal Training Unit (FTU). A formal training syllabus was not available until Feb 10. He assumed he was being trained under the published 2006 Pilot Instructor Course (PIC) syllabus. It was not until the middle of the FEB that he discovered the FTU Chief and Operations Support Squadron (OSS) Commander did not know the syllabus existed. The FTU Chief made up her own rule for when to convene a PRB. At the sole PRB, the interim squadron commander used criteria in an unpublished syllabus not available for review. Since being disqualified from aviation service, he has continued to serve honorably as a rated staff officer. All he ever asked was to be treated fairly and In Accordance With (IAW) published regulations. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 16 Oct 92, the applicant entered active duty and is currently serving in the Regular Air Force in the grade of lieutenant colonel. According to an undated AMC/JA memorandum, a FEB was convened on 16 Jun 10 to consider the applicant’s professional qualifications as a KC-10 Aircraft Commander and make recommendations regarding his future service as a pilot. The memorandum states that the applicant requested the 60 AMW/CC not convene an FEB stating the FTU Chief wrongfully denied him a retraining opportunity and that he labored under personal difficulties which may have negatively impacted his flying duties. The 60 AMW/CC convened the FEB following the applicant’s failure to complete upgrade training to become an instructor pilot. The JA memorandum also states that he failed most training standards in that he did not attain a proficient level in instructor duties, airmanship, night receiver air refueling and autopilot; and he displayed a lack of judgment by electing to willfully continue training while subjected to major outside stressors and failure to realize that his performance may be affected. After hearing testimony and reviewing documentary evidence, the FEB found the applicant failed to meet training standards and lacked judgment IAW AFI 11-402, Aviation and Parachutist Service, Aeronautical Ratings and Aviation Badges paragraphs 4.3.3 and 4.3.4. The Staff Judge Advocate (SJA) determined the FEB to be fair and impartial and recommended the AMC/CC approve the recommendation to disqualify him from further aviation service for failing to meet training standards (vice lack of judgment) and permit him to retain the aviation badge. Per AMC/A3T memorandum dated 18 Jan 11, the AMC/CC approved the applicant’s permanent disqualification from aviation service. It was directed that aeronautical orders be published assigning Aviation Service Code (ASC) 05, which denotes “Disqualification from Aviation Service-Flying Evaluation Board” for failure to meet training standards. He was permitted to wear the aviation badge. AFI 11-402, paragraph 4.3.3 states failure to meet academic or flying standards while enrolled in a USAF directed formal flying training course requires an examination of the aircrew member’s potential for continued aviation service and an FEB evaluates retention or removal from training and potential for continued aviation service. According to the Flying Training KC-10 Pilot Instructor (PIC) Course Training Syllabus dated 30 Sep 06, Figure 2-1, progress review triggers include overall lesson/sortie grade of “fair” or “unsatisfactory” for a third consecutive time, failure to meet Required Proficiency Levels (RPL), Aircrew Training System (ATS) site manager recommendation, OSS Commander-directed, unsatisfactory open/closed/Instrument Refresher Course (IRC) or other syllabus-directed examinations. Progress review determinations are made to determine retraining, training modification or FEB. AFI 11-2KC-10, Volume 1, Travis AFB Supplement, paragraph 1.16.1 states that a PRB will be conducted if the student fails to progress. The PRB will be convened to review the trainee’s records and recommend continuing training, retraining, modify training or an FEB. AIR FORCE EVALUATION: USAF/A3O-AIF recommends denial of the applicant’s requests and states that the FEB’s final approval authority determined the applicant should be permanently disqualified from aviation service. Based on the documentation provided, the FEB was conducted IAW AFI 11-402. The AMC/CC executed his right as the final approval authority for the FEB per the AMC/A3T letter dated 18 Jan 11 which states “AMC/CC has approved permanent disqualification from aviation service for failure to meet training standards.” This statement fulfilled the requirements in AFI 11-402, paragraph 4.6.8. A copy of the A30-AIF evaluation is at Exhibit B. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: There is no advisory from AMC/A3T or any other formal training Office of Primary Responsibility (OPR). There was an error made resulting in an injustice concerning his formal training syllabus while in the Pilot Instructor Course. The syllabus error and the resulting injustice is the heart of his request. Based on the approved syllabus, his PRB was not justified and was convened in error. Without the PRB, there would never have been an FEB and he would not have been disqualified from aviation service. It is noteworthy that the only advisory submitted completely ignores the entire argument. The advisory gives no explanation why commanders at Travis AFB, CA in 2010 were unaware a formal training syllabus existed and had been approved by AMC since 2006. The advisory also fails to address why it is acceptable for the FTU Chief to violate the applicant’s approved syllabus by making up her own rule when to send a student to a PRB. This was clearly an error which violated the right to due process. It was impossible to meet all training requirements since he was not allowed to complete training per his formal syllabus. There is precedence for over-turning a commander’s decision when there is a clear error leading up to the decision. In AFBCMR Docket Number BC-2013-01719, the Board overturned an Article 15 given for a failed drug test. In that case, the applicant failed a drug test after taking prescription drugs. According to the complaint, the applicant followed the correct actions for each level of appeal but his commander refused to act upon the evidence presented. While the referenced case dealt with a failed drug test and not flying, both are similar in that there was a clear error that started a process leading to a serious negative career action. In both cases, there is a question of whether or not the commander’s decision is an injustice based on an initial error that was never corrected. The applicant’s complete submission, with attachment, is at Exhibit E. ADDITIONAL AIR FORCE EVALUATION: USAF/A3O-AIF recommends denial. A30-A1F recommends contacting AMC for the training syllabus issue. A3O-AIF can only investigate if the FEB was done IAW AFI 11-402; chapter 4 and that there was a reason to convene an FEB, which was a failure to meet academic training. A3O-AIF cannot validate the syllabus or the evidence during the FEB. Based on the documentation provided, the FEB was conducted IAW AFI 11-402. The complete A3O-AIF evaluation is at Exhibit F. AMC/A3TK states that it must be presumed that once the PRB determined the need for an FEB, the FEB was carried out appropriately, as noted by the AMC SJA. It is of note that without the applicant’s actual training records it is impossible to determine the adequacy of his training or adherence to any syllabus. There was an AMC approved instructor upgrade course syllabus in effect at the time of the applicant’s instructor upgrade course. The 2006 PIC syllabus was approved by AMC/A3 on 23 Oct 06. It does provide for the convening of a PRB if a student receives an overall grade of unsatisfactory on three consecutive sorties. The provided copy of the 2006 PIC syllabus references AFI 11-2KC-10, KC-10 Aircrew Training, Volume 1, 25 Oct 06. The 2005 version of that document would have been in effect at the time of the syllabus’ publication. This document declares that students who fail to progress will go to a process review (paragraph 1.17). The 2009 version, which would have been in effect at the time of the applicant’s attendance at PIC largely, says the same thing. There is no way to substantiate his claim that he believed he should have been allowed to continue in training even after the need for a PRB had been determined. The complete A3TK evaluation is at Exhibit G. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The AMC/A3TK advisory states that there was a syllabus and a PRB convened upon three consecutive “unsatisfactory” sorties. He never had three consecutive “unsatisfactory” sorties and provides a training matrix showing the dates of every sortie and the event accomplished. His final three sorties were on 19 Feb, 26 Feb and 3 Mar 10 and only the final sortie is graded “unsatisfactory.” The advisory proves he was unjustly sent to a PRB since he did not meet the criteria of three consecutive “unsatisfactory” ratings. There is still no valid justification given for the sole PRB. An error was made in convening the PRB and without the sole PRB, there would not have been a decision to convene an FEB. The FTU Chief and the OSS/CC violated AFI 11-2KC-10 Volume 1 which directs the use of an approved syllabus if available. This oversight has never been explained. It is clear that he was not treated IAW his approved formal training syllabus. Without this error, he would not have been sent to a FEB or disqualified from aviation service. He asks this error be corrected by purging the FEB from all Air Force records and that his aviation service be restored effective 20 May 10. The applicant’s complete submission, with attachments, is at Exhibit I. 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 to warrant removing the FEB from his records, changing his flying record to reflect an administrative withdrawal from the KC-10 Pilot Instructor Course, rescinding his disqualification from aviation service and reinstating his flight status. The applicant contends that the PRB was convened in error and without the PRB, the FEB, which subsequently led to his permanent disqualification from aviation service would not have convened. Although three consecutive failures is a reason for the convening of a PRB, it is not the only reason. As noted in the 2006 KC-10 PIC syllabus, there are several other reasons for the convening of a PRB and the applicant has not provided substantial evidence to persuade us that the PRB was unjustly convened or that the actions taken were inappropriate. Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) 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 the absence of evidence to the contrary, we find no basis to recommending granting any of the relief sought in this application. 4. Additionally, counsel argues that there is precedence for over-turning a commander’s decision when there is a clear error leading up to the decision and cites AFBCMR Docket Number BC- 2013-01719. However, every case before this Board is considered on its own merit since the circumstances of each case are seldom identical. As pointed out by counsel, the referenced case dealt with a failed drug test and not flying. As such, we find it distinguishable and not comparable with the applicant’s requests. Therefore, in the absence of evidence that the applicant was treated differently than others similarly situated we find no equitable basis to grant any of the relief sought in this application. 5. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2014-02210 in Executive Session on 9 Dec 14 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence in AFBCMR Docket Number BC- 2014-02210 was considered: Exhibit A. DD Form 149, dated 12 Jul 13, w/atchs. Exhibit B. Memorandum, USAF/A3O-AIF, dated 5 Jun 14. Exhibit C. Letter, SAF/MRBR, dated 27 Jun 14. Exhibit D. Letter, Applicant’s Counsel, dated 27 Jul 14. Exhibit E. Letter, Applicant’s Counsel, undated, w/atch. Exhibit F. Memorandum, USAF/A3O-AIF, dated 8 Sep 14. Exhibit G. Memorandum, AMC/A3TK, dated 2 Oct 14. Exhibit H. Letter, SAF/MRBR, dated 27 Oct 14. Exhibit I. E-mail, Applicant, dated 25 Nov 14, w/atchs.