IN THE CASE OF: BOARD DATE: 18 May 2020 DOCKET NUMBER: AR20180009181 APPLICANT REQUESTS: * in effect, correction of his records to show he was medically discharged, either in parallel with or in lieu of the administrative separation proceeding improperly initiated by his commander * in the alternative, receipt of separation pay * promotion to the rank/grade of chief warrant officer two (CW2)/W-2 * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to properly reflect the requested changes APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Letter, Applicant's Counsel, dated 1 March 2018, regarding: Request for a Correction to the Military Records of (Applicant), with four enclosures – * Enclosure 1 – Naval Service Records * Enclosure 2 – Army Service Records * Enclosure 3 – Medical Service Records * Enclosure 4 – Separation Packet REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, governed medical fitness standards for enlistment, induction, and appointment (including officer procurement programs); medical fitness standards for retention and separation (including retirement); medical fitness standards for diving, special forces, airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties and officer assignments; medical standards and policies for aviation; physical profiles; and medical examinations and periodic health assessments. a. Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provided the various medical conditions and physical defects which may render a Soldier unfit for further military service. Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by a medical evaluation board (MEB) and will be referred to a physical evaluation board (PEB). b. Paragraph 3-3 (Disposition) stated physicians who identify Soldiers with medical conditions listed in this chapter should initiate an MEB at the time of identification. Physicians should not defer initiating the MEB until the Soldier is being processed for non-disability retirement. Many of the conditions listed in this chapter (for example, arthritis, paragraph 3-14b) fall below retention standards only if the condition has precluded or prevented successful performance of duty. In those cases when it is clear the condition is long standing and has not prevented the Soldier from reaching retirement, then the Soldier meets the standard and an MEB is not required. c. Chapter 6 (Aeromedical Administration) provided administrative policies for completing the Army flying duty medical examination. d. Paragraph 6-8 (Frequency and Period of Validity of Flying Duty Medical Examinations) stated a comprehensive flying duty medical examination may be required following disqualifying illness or injury present for more than 12 months. A comprehensive flying duty medical examination is required for those who are terminated from aviation service and are requesting a return to aviation service. e. Paragraph 6-17 (Medical Termination from Aviation Service) stated medical termination from aviation service (permanent medical suspension) is required for permanent aeromedical disqualifications that are not likely to result in requalification within 365 days. 3. Army Regulation 637-2 (Separation Pay (Nondisability) and Levels of Payment) prescribes the separation pay processing functions of the military personnel system. The intent is to establish Army policy that provides a standard process for compensating eligible Soldiers who are involuntarily separated from active duty. Chapter 2 (Eligibility) states full separation payment of nondisability separation pay is authorized to Soldiers of the Regular and Reserve Component involuntarily separated from active duty who meet each of the five conditions: a. the Soldier is on active duty/active service and has completed at least 6 years, but fewer than 20 years, of active service; b. the Soldier's separation is characterized as "Honorable"; c. the Soldier is being involuntarily separated by the Military Service concerned through either the denial of reenlistment and/or extension or the denial of continuation on active duty or in an active service status; d. the Soldier has entered into a written agreement with the Military Service concerned to serve in the Ready Reserve of the Reserve Component of the Military Service for a period of not less than 3 years following separation from active duty/active service; and e. the Soldier has initialed and signed a DA Form 7783 (Written Service Agreement and Mandatory Disclosure Statement) with the mandatory disclosure statement: "If I qualify for military retired or retainer pay in accordance with 10 USC [Title 10, U.S. Code] or 14 USC [Title 14, U.S. Code] and/or the Department of Veterans Affairs disability compensation pursuant to the laws administered by the Secretary of Veterans Affairs after receiving Involuntary Separation Pay (known as "ISP"), I will be subject to a deduction from such retired or retainer pay, or from disability compensation in the total amount of any ISP paid, as prescribed under 10 USC 1174 [Title 10, U.S. Code, section 1174]." 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System. It set forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. a. Paragraph 3-1 (Standards of Unfitness Because of Physical Disability) stated the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. b. Paragraph 3-1a stated to ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501, chapter 3. These standards include guidelines for applying them to fitness decisions in individual cases. These guidelines are used to refer Soldiers to an MEB. 5. Army Regulation 600-8-24 (Officer Transfers and Discharges), in effect at the time, prescribed the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more. a. Paragraph 2-33 (Rules for Processing Involuntary Release from Active Duty and Termination of Reserve Appointments of Student Officers and Warrant Officers Attending Branch Orientation, familiarization Courses, or Warrant Officer Basic Course) stated effective 1 October 1992, warrant officers (WO1/W-1), who are appointed contingent upon successful completion of the Warrant Officer Basic Course, will be released from active duty or discharged if: (1) eliminated from the Warrant Officer Basic Course due to resignation from the course or for failure to meet the conduct, moral, physical, professional, academic, or leadership standards; or (2) failure of Reserve Component warrant officers (WO1/W-1) to successfully complete the Warrant Officer Basic Course within 2 years of appointment. b. Paragraph 2-37 (Rules for Processing Involuntary Release from Active Duty due to Failure of Selection for Permanent Reserve Promotion) stated Reserve warrant officers holding the permanent Reserve grade of W-1 and serving on active duty as warrant officers and who are not promoted to the permanent Reserve grade of W-2 on or before completing 3 years of promotion service will be released from active duty. c. Chapter 4 (Eliminations) stated an officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer's patriotism, valor, fidelity, and competence. An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times. However, an officer who will not or cannot maintain those standards will be separated. Elimination action may be or will be initiated for substandard performance, to include failure to establish an adequate family care plan; misconduct, moral or professional dereliction, or in the interests of national security; or derogatory information. 6. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. a. Paragraph 3-3 (Rules for Computing Promotion Eligibility Date to CW2) states the promotion eligibility date to CW2 will be the second anniversary of warrant officer service provided the officer has served a minimum of 18 months on the Active Duty List as a warrant officer. b. Paragraph 3-5 (Rules for Processing DA Form 78 (Recommendation for Promotion to First Lieutenant (1LT)/CW2)) states preparation of a DA Form 78 is no longer required for officers who are promoted by the automated system. Automated promotions to 1LT and CW2 will be done in accordance with instruction issued by Headquarters, Department of the Army. When a promotion approval authority disapproves promotion to 1LT/CW2, process a DA Form 78 not later than the promotion eligibility date and provide a copy to the officer under consideration. The officer will be afforded the opportunity to provide a statement to the promotion approval authority. Officers denied promotion to CW2 will be processed for separation under applicable regulations. 7. Army Regulation 600-20 (Army Command Policy), in effect at the time, prescribed the policies and responsibilities of command, which include the well-being of the force, military discipline and conduct, the Army Equal Opportunity Program, and the Army Sexual Assault Victim Program. a. Paragraph 5-5 (Family Care Plan) stated the Army assists the Soldier in providing for the care of his or her family members. Mission, readiness, and deployability needs especially affect Active Army, Army National Guard, and U.S. Army Reserve single parents and dual military couples with family members. Plans must be made to ensure family members are properly and adequately cared for when the Soldier is deployed, on temporary duty, or otherwise not available due to military requirements. b. Paragraph 5-5k(e) stated officers without adequate family care plans should be considered for separation processing by their unit commanders under the provisions of Army Regulation 600-8-24. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant defers to counsel. 3. Counsel states: a. The question that must be answered is whether the applicant purposefully chose not to actively participate in his flight training or did "life" happen due to matters beyond his control and his cadre leadership punished him because he did not conform as the standard student. b. It is absolutely clear the applicant was not liked by his student-instructor chain of command because they felt he could not control his family or his wife during their divorce proceedings or because, in their opinion, he quit. c. When he injured his knee, and was moving toward a disability separation or retirement; his instructors immediately recommended his administrative separation because he did not have a sufficient family care plan in place. d. When a board of officers disagreed with the chain of command and recommended his retention on active duty, the command conveniently determined he was no longer an asset to the Army and separated him. e. He was unfairly targeted because in the opinion of his "all or nothing" lead student-instructor, he did not meet the mold of an "Army aviator," even though he was more than qualified to remain in the Army in another branch. Their actions were personal, vindictive, and not in the best interests of the Army or the applicant. f. The applicant's knee injury was severe enough that it required three surgeries in order to make it functional, the last of which was a complete cartilage graft. The three surgeries and rehabilitation occurred over approximately 18 months. Only after which, in June 2008, did the applicant's primary care manager determine he was more than likely no longer fit for military service and began the process to initiate an MEB. g. Pursuant to Army Regulation 635-40, chapter 4, the MEB/PEB process should have continued, but it was stopped for reasons that are unclear or documented. The only reason his command was permitted to pause or discontinue the MEB/PEB process was if a Soldier was pending administrative separation with a recommendation for a general discharge under honorable conditions. There was absolutely no reason why the applicant's MEB was paused but for the fact that his command sought to derail a positive outcome for him. h. He was not promoted to CW2 after his automatic promotion date had passed – or for nearly 18 months afterward. The applicant was eligible for promotion to CW2 on the second anniversary of his appointment as warrant officer in accordance with Army Regulation 600-8-29, chapter 3, section II. There is no evidence in his file as to the reason for the failure to promote him. 4. The applicant enlisted in the U.S. Navy on 9 August 1994. 5. He was honorably discharged from the U.S. Navy on 19 July 2005. Item 28 (Narrative Reason for Separation) of his DD Form 214 for this period shows: "Enter Officer Training Program." 6. Headquarters, U.S. Army Aviation Center and Fort Rucker, Orders 238-177-A-1108, dated 26 August 2005, ordered him to active duty effective 8 September 2005 with an active duty commitment of 6 years upon successful completion of the Warrant Officer Candidate Course. 7. He was honorably discharged on 7 September 2005 after completing the Warrant Officer Candidate School. Item 28 of his DD Form 214 for this period shows: "Accept Commission or Warrant in the Army." 8. Headquarters, U.S. Army Aviation Center and Fort Rucker, memorandum, dated 8 September 2005, subject: Appointment as a Reserve Warrant Officer of the Army under Sections 591 and 597, Title 10, U.S. Code, appointed him as a warrant officer. He was instructed that he must successfully complete the Warrant Officer Basic Course or he would be subject to discharge under the provisions of Army regulations. He completed a DA Form 71 (Oath of Office) on 8 September 2005 as a Reserve warrant officer. 9. The Record of Student Administrative Action form, dated 3 January 2006, shows the applicant was placed on an administrative hold status. 10. The Record of Student Administrative Action form, dated 18 August 2006, shows the applicant was placed on an administrative hold status. 11. The Record of Student Administrative Action form, dated 8 January 2007, shows the applicant was placed on a medical hold status. 12. The Record of Student Administrative Action form, dated 30 May 2007, shows the applicant was placed on an administrative hold status. 13. He received developmental counseling from the initial-entry rotary wing training chief on 28 June 2007 for being unshaven at physical training on 26 June 2007 and requesting self-elimination from flight training, then withdrawing his verbal request. a. The initial-entry rotary wing training chief noted he arrived at physical training unshaven on 26 June 2007, then asked to go home to take medication. That same day he requested self-elimination from flight training. After a discussion with instructors, he changed his mind and withdrew the request. This demonstrated a pattern of unacceptable, substandard performance from an Army warrant officer and must stop. If performance of his military duties continued to be substandard, he may be processed for elimination from the military. b. The applicant agreed with the counseling and signed the DA Form 4856 (Developmental Counseling Form) on 3 August 2007 14. He receive developmental counseling from the initial-entry rotary wing training chief on 2 August 2007 to provide documentation of his decision-making skills and intent to break contract or get out of the military. a. The initial-entry rotary wing training chief noted he was previously counseled on 28 June 2007 on the inability to re-branch him in the event he chose to self-eliminate from flight school. Upon being verbally counselled, he changed his mind and decided to stay in the program. Over the last month he questioned if he could switch over to the National Guard and only perform drills. His behavior was found to be disloyal, as the Army already has paid for his schooling. It appears as though he continues to be motivated by his own personal gain and not that of the Army. He also doesn't want his personal life to be brought into any question, although it is purely his personal life that has kept him on hold repeatedly during his training. b. The counseling was for the sole purpose of having documentation so that in the event he changes his mind or makes another poor decision, it can be shown as a trend. His behavior, attitude, and decision making bring great question to whether he is the disciplined, motivated, and loyal officer that is needed for the Army. c. He disagreed with the counseling and provided his statement refuting the counseling. He signed the DA Form 4856 on 3 August 2007. 15. Judicial Circuit Court of, Court Order, dated 8 August 2007, ordered sole physical custody of one of the applicant's minor children to him. 16. He received developmental counseling from the executive officer on 13 August 2007 in response to his request to his commander to leave his duty at 1500 hours every day to pick up his children. He stated he did not have child care after 1500 hours for his children. a. The executive officer noted he failed to work throughout the duty day and stated he does not have daycare for his children throughout his duty day. It is incumbent upon him to fulfill his obligation to work a duty day. He neglected his duty to the prejudice of good order and discipline in the Armed Forces. It is his responsibility to be at his appointed place of duty. Further offenses of this kind will be corrected with additional training, discipline under the provisions of the Uniform Code of Military Conduct, or administrative separation. b. The applicant was directed to complete a family care plan immediately. He was advised he had within the week to have child care for his children and instructed to provide proof of his completed family care plan no later than 20 August 2007. c. He agreed with the counseling and plan of action. He signed the DA Form 4856 on 20 August 2007. 17. He received developmental counseling from the initial-entry rotary wing training chief on 21 August 2007 for failing to show up on time for physical training. a. The initial-entry rotary wing training chief noted his failure to report to physical training formation on 20 August 2007 reflected poorly on him, his unit, and the command. While he is being eliminated from this course, he must continue to perform like every other Soldier assigned to this command. b. He agreed with the developmental counseling and signed the DA Form 4856 on 20 August 2007. 18. The Bravo Company, 1st Battalion, 145th Aviation Regiment, memorandum, dated 21 August 2007, subject: Recommendation on (Applicant), states the applicant displays poor officer and leadership skills necessary to be an Army officer. He cannot fulfill or meet his obligations of a Soldier in the U.S. Army and highly recommends his release from active duty immediately. 19. The Record of Student Elimination Action form, dated 11 October 2007, shows a request for appropriate action to eliminate the applicant for failure to progress. a. The applicant signed the form and elected not to submit a written statement in his behalf. b. The Commander, Bravo Company, 1st Battalion, 145th Aviation Regiment, recommended approval and commented, "I highly recommend this be approved – SM [Service Member] makes a poor officer – has displayed a poor attitude and judgement." c. The request was approved by the Commander, 1st Battalion, 145th Aviation Regiment, and the approving authority, the Commander, 1st Aviation Brigade. d. The applicant elected to appeal and indicated he desired to present his case orally. e. Upon due consideration of all matters presented with the applicant's appeal, the Deputy Commanding General upheld the elimination decision. 20. The Office of the Staff Judge Advocate memorandum, dated 4 December 2007, states the Staff Judge Advocate reviewed the Student Elimination action pertaining to the applicant and found it legally sufficient and in compliance with applicable Army regulations and guidance. 21. The Dothan Surgery Center Operative Report, dated 4 December 2007, shows the applicant underwent arthroscopic debridement and microfracture surgery of his right knee medial femoral condyle. 22. Report, dated 10 April 2008, shows the applicant underwent a diagnostic arthroscopy of his right knee, plica excision, and cartilage harvest. 23. The Report, dated 5 June 2008, shows the applicant underwent a surgical procedure to harvest healthy cartilage from his right knee periosteum and implant it into the damaged cartilage. 24. The Headquarters, 1st Aviation Brigade, memorandum, dated 9 June 2008, states the applicant's brigade commander notified the U.S. Army Aviation Warfighting Center, Fort Rucker, of the applicant's elimination from the Initial-Entry Rotary Wing Course of Instruction for failure to have a family care plan and also for attitude and motivation. He recommended the applicant's release from active duty in accordance with Army Regulation 600-8-24, chapter 4. He was given adequate time to establish a family care plan and failed to provide one in the allotted time given to him. He described the applicant as "a selfish individual who does not need to be a Soldier in our Army." 25. The Headquarters, U.S. Army Aviation Warfighting Center and Fort Rucker, memorandum, dated 10 June 2008, subject: Initiation of Elimination – (Applicant), shows the applicant was required to show cause for retention on active duty for substandard performance of duty, misconduct, and moral or professional dereliction, specifically for a downward trend in overall performance resulting in an unacceptable record of efficiency, or a consistent record of mediocre service, for failing to file an adequate family care plan and for mismanagement of personal affairs that are unfavorably affecting an officer's performance of duty. The Commanding General stated: a. His action is based on the following specific reasons for elimination: (1) On 13 August 2007, the applicant was counseled for not having a family care plan. (2) On 26 October 2007, the applicant was again counseled for not having a family care plan. (3) On 11 February 2008, the applicant presented the battalion commander with a family care plan after refusing to present one to his company commander and failing to previously mention that he had one prepared. (4) The applicant was counseled on numerous occasions for his lack of discipline and professionalism, his personal appearance, and failure to report or be at his appointed place of duty. b. He recommended the applicant's discharge with his service characterized as honorable. 27. The DA Form 1574 (Report of Proceedings by Investigation Officer/Board of Officers), dated 2 December 2008, shows: a. Section IV (Findings): (1) The allegations for a downward trend in overall performance in an unacceptable record of efficiency, or a consistent record of mediocre service are not supported by a preponderance of the evidence. (2) The allegations for failing to file an adequate family care plan are supported by a preponderance of the evidence. (3). The allegations for mismanagement of personal affairs that are unfavorable affecting an officer's performance of duty are supported by a preponderance of the evidence. b. Section V (Recommendations): the applicant be retained on active duty. c. Section VIII (Action by Appointing Authority): Approved by the Commanding General, U.S. Army Aviation Center of Excellence, Fort Rucker. 27. His records contain no evidence showing he was found unfit for retention under the provisions of Army Regulation 40-501, chapter 3. 28. He was honorably discharged on 2 February 2009. His DD Form 214 shows in: * item 4a (Grade, Rate, or Rank) – WO1 * item 4b (Pay Grade) – W-1 * item 9 (Command to Which Transferred) – N/A * item 12h (Effective Date of Pay Grade) – 8 September 2005 * item 18 (Remarks) – Member is Entitled to No Involuntary Separation Pay * item 25 (Separation Authority) – Army Regulation 600-8-24, paragraph 2-37 * item 28 (Narrative Reason for Separation) – Failure to Complete Course of Instruction 29. On 30 June 2010, the Army Discharge Review Board denied the applicant's request for reinstatement in the U.S. Army to finish flight school or be allowed to attend the Marine Deck Officer School, so he could continue his 14 years of service. The board determined the discharge was both proper and equitable, and voted to deny relief. 30. On 20 September 2011, the ABCMR denied the applicant's request to revoke his discharge, reinstatement in the Regular Army, and attendance at Warrant Officer Flight Training or retraining in a military occupational specialty as a marine deck officer. The Board determined: a. Records indicate the applicant's discharge under the provisions of Army Regulation 600-8-24 based on failure to complete a course of instruction was administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. b. There is a presumption of administrative regularity in the conduct of governmental affairs. This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption. The applicant fails to provide such evidence. As a result, considering all the facts of the case, the applicant's discharge from the U.S. Army is presumed proper and equitable. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, counsel’s petition, the military record, and regulatory guidance were carefully considered. Evidence of record shows the applicant met retention standards during his period of active duty service and separated for a downward trend in overall performance. The record also shows the applicant was counseled on numerous occasions for his lack of discipline and professionalism, his personal appearance, and failure to report or be at his appointed place of duty. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows a medical discharge, separation pay, promotion, or additional changes to his DD Form 214 were warranted during his period of active service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180009181 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1