MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 July 2002
         DOCKET NUMBER: AR2001061436

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. Thomas B. Redfern		Member
Mr. Roger W. Able		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)

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APPLICANT REQUESTS: Reinstatement in the Regular Army.

APPLICANT STATES: In effect, that she suffered reprisal and was discriminated against for making protected communications. She contends that her company commander directed her for two mental health evaluations and discharged her from the Army in reprisal for her protected communications to the Federal Bureau of Investigation (FBI), an Inspector General (IG), and her commander. In support of her application, she submits a copy of a complaint filed in the United States District Court for the Northern District-Illinois/Eastern Division against William Jefferson Clinton, Hilary Rodham Clinton and America Online Incorporated; a complaint filed in the United States District Court for the Northern District of Illinois against the United States of America, the British House of Commons, the State of Illinois and the University of Chicago; a complaint filed in the United States District Court for the Northern District of Illinois/Eastern Division against the State of Illinois (Cook County State’s Attorney Office, Office of the State’s Attorney, the Circuit Court of Cook County, the Illinois Department of Children & Family Services, Cook County Public Guardian’s Office, the Illinois Department of Professional Regulation, the Illinois Department of Public Health & Human Services), the Oak Lawn Police Department, an Internal Revenue Service Agent and a lawyer; and exhibits A-W.

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

The applicant enlisted on 3 November 2000 for a period of 4 years.

The applicant was command referred for a mental status evaluation in November 2000. No other information is available.

On 5 December 2000, the applicant underwent a second mental status evaluation. She was diagnosed with bipolar disorder with psychotic features, provisional versus schizophrenia, paranoid type per history.

The applicant’s medical board proceedings are not contained in the available records.

On 12 December 2000, the applicant requested the Department of Defense (DOD) IG, investigate her allegations of whistleblower reprisal. The applicant alleged that her company commander directed her for two mental health evaluations and discharged her from the Army in reprisal for her allegations to the company commander, the Federal Bureau of Investigation (FBI), and an IG. The applicant also alleged that her referral for a mental health evaluation on
5 December 2000 was procedurally improper.

The facts and circumstances surrounding the applicant’s discharge are not contained in the available records. However, her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that she was discharged on
22 December 2000 under the provisions of Army Regulation 635-200, paragraph 5-11, for failure to meet procurement medical fitness standards. Her character of service was uncharacterized.

The DOD IG, conducted a preliminary inquiry under Title 10, United States Code, Section 1034 (10 U.S.C 1034), “Military Whistleblower Protection Act,” to investigate the applicant’s allegations of reprisal for making protected communications. The preliminary inquiry was conducted based on complaints by the applicant that her company commander directed her for a mental health evaluation in reprisal for her protected communications to the FBI, the commander, and an IG; that her company commander directed her for a second mental health evaluation and she was involuntarily committed in reprisal for her protected communications to the FBI, the commander, and an IG; and that her company commander discharged her in reprisal for her protected communications to the FBI, the commander, and an IG.

On 8 May 2001, the DOD IG, determined that the applicant’s company commander’s actions in command directing the applicant for two mental health evaluations and the medical discharge were justified in light of the applicant’s documented biography and subsequent misconduct. The DOD IG, determined that the applicant’s complaint and disclosures to the FBI prior to her entry into the service were not protected communications under 10 U.S.C. 1034; that a required biography submitted by the applicant to the commander was not a protected communication under 10 U.S.C. 1034; the applicant’s company commander initiated action for the applicant’s first mental health evaluation prior to the applicant making a protected communication; the applicant’s documented misconduct in the basic training environment was the principal cause of the second mental health evaluation; that competent medical authorities, not the applicant’s company commander, determined the applicant required an inpatient mental health evaluation; and that competent medical authorities, not the applicant’s company commander, determined the applicant had a disqualifying medical condition that existed prior to service and recommended a medical discharge.

The preliminary inquiry of the DOD IG, did not find sufficient evidence to warrant further investigation into the applicant’s reprisals. However, the DOD IG, determined that there were administrative and procedural problems with the two command referred mental health evaluations. The DOD IG, directed that the appropriate command authorities be counseled of the requirements to fully comply with Department of Defense Directive (DoDD) 6490.1, “Mental Health Evaluations of Members of the Armed Forces” and Department of Defense Instruction (DoDI) 6490.4, “Requirements for Mental health Evaluations of Members of the Armed Forces.”

Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. Paragraph 5-11 specifically provides that soldiers who were not medically qualified under procurement medical fitness standards, when accepted for enlistment, or who became medically disqualified under these standards prior to entrance on active duty or active duty training or initial entry training will be separated. A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the soldier’s initial entrance on active duty, that the condition would have permanently or temporarily disqualified the soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3. The characterization of service for soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the soldier is in an entry level status.

The Department of Defense (DOD) Directive Number 7050.6, dated
20 November 1989, covered the Military Whistleblower Protection provisions (Title 10, U.S. Code, section 1034). This directive was reissued on 3 September 1992. The directive indicates that it is DOD policy that no person shall restrict a member of the Armed Forces from lawfully communicating with a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; that members of the Armed Forces shall be free from reprisal for making or preparing to make lawful communications to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; and that no employee or member of the Armed Forces may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing a lawful communication to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization. This directive was reissued again on 12 August 1995 to include specific other complaints as protected communications and expand the scope of persons and activities to whom a protected communication could be made.

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

1. The Board considered the applicant’s contention that she suffered reprisal and was discriminated against for “whistleblowing.” However, evidence of record shows that the DOD IG, determined that the applicant’s allegations of whistleblower reprisal did not warrant investigation under the Military Whistleblower Protection Act. Therefore, there is no evidence of record to support this contention.

2. The applicant’s DD Form 214 shows that she was discharged for failure to meet medical fitness standards. In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no indication of procedural errors, which would tend to jeopardize her rights. The type of discharge directed and the reasons for separation appear to be appropriate. Based on the foregoing, the applicant is not entitled to reinstatement in the Army.

3. 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.

4. 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_____ TBR_____ RWA_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061436
SUFFIX
RECON
DATE BOARDED	20020709
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0300
2.
3.
4.
5.
6.