IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110004133 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:

* revocation of her 20 November 2010 discharge action
* reinstatement in the U.S. Army
* entitlement to back pay and allowances from the date of separation to the date of reinstatement
* credit for time in grade for pay, promotion, and retirement purposes
* an opportunity to apply for the Federal Legal Education Program (FLEP) and the rank that she originally applied for and was denied

2.  The applicant states that she is a mature and highly educated woman who possesses a baccalaureate degree in criminal justice from Indiana State University.  If anything she was overqualified to be an enlisted service member.  Her age also makes serving in a junior enlisted grade problematic.  

3.  She provides:

* An Enlisted Record Brief
* Twenty-four DA Forms 4856 (Developmental Counseling Form) from June 2009 to March 2010
* DA Form 3355 (Promotion Point Worksheet), dated 11 November 2009
* DD Form 214 (Certificate of Release or Discharge from Active Duty (AD))



COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be granted relief.

2.  Counsel states:

	a.  this Board, on multiple prior occasions, has seen overqualified junior enlisted Soldiers posing a perceived intellectual threat to lower levels of command.  This is a classic case of reprisal in that a disproportionate adverse action was taken for the sole and exclusive purpose of removing the applicant from the Army.  

	b.  the applicant entered the Army in pay grade E-4 on 30 May 2007 and completed basic and advanced individual training.  On 24 April 2009, she deployed to Afghanistan and from this date forward the difficulties and reprisal began.  

   c.  on 13 June 2009, she was counseled about being without a battle buddy.  She disputed the assertion.  On 28 July 2009, she was counseled again for not being in the presence of a battle buddy.  She vigorously disputed that she was without a battle buddy.  
   
   d.  Her July 2009 appraisal gave her high marks for conduct and appearances even though the above counseling was signed by the staff sergeant who counseled her on 13 June and 28 July 2009 without her knowledge.  

	e.  the applicant’s October counseling was totally benign.  Her 12 November 2009 counseling recognized a change of duty and her 30 November 2009 pointed out some administrative deficiencies but was otherwise positive.  The applicant’s 10 December 2009 counseling noted her attempt to be reassigned and that she complained about her current command.  

	f.  on 27 March 2010, the applicant’s counseling statement suggested that she failed to report as instructed.  Prior to this time no adverse action had been taken against her.  The applicant submitted a rebuttal to the 27 March 2010 counseling.  On 30 March 2010, she received a company grade Article 15, and a Report to Suspend Favorable Personnel Actions (FLAG) was initiated.  She received three counseling statements advising her that due to the flagging action promotion consideration was not possible.



	g.  on 20 November 2010, the applicant was separated because she was unable to be recommended for promotion.  She was within 90 days of separation when the flagging action was lifted and this prohibited her from reenlisting.  It is grossly inequitable to allow an 8 month old company grade Article 15 with a suspended reduction to form the basis for what is essentially a bar to reenlistment.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in pay grade E-4 in the U.S. Army Reserve (USAR).

2.  The available evidence shows, on 30 May 2007, she enlisted in the Regular Army (RA) in pay grade E-4 for 3 years and 25 weeks.  She completed training and was awarded military occupational specialty 92W (Water Treatment Specialist).  She was issued deployment orders for Operation Enduring Freedom with a start date of on or about 30 April 2009 and end date of 29 April 2010.  

3.  She received the following counseling on:

* 2 June 2009 – monthly (May) performance, continue to keep military bearing; keep body and area clean; do physical training to standard, not time; register for correspondence course; and be mission ready
* 13 June 2009 – disobeying a lawful order, the importance of a battle buddy, applicant disagreed and stated she had a battle buddy
* 1 July 2009 – monthly (June) counseling, performance had been to standard, needed to be more proactive in order to teach subordinates, and complete the mission given to her, applicant agreed
* 28 July 2009 – failure to follow a direct order by being without a battle buddy
* 30 July 2009 – performance/professional growth, monthly (July), applicant agreed
* 31 October 2009 – monthly (October) counseling
* 12 November 2009 – initial counseling on basic duties and responsibilities, short and long term goals, the expectation of a leader and other related areas, applicant agreed

4.  On 11 November 2009, she was issued a DA Form 3355 showing she had been awarded 150 total points for promotion. 

5.  She received the following counselings on:

* 30 November 2009 – monthly (November) counseling 
* 5 December 2009 – being disrespectful towards a senior noncommissioned officer and action to separate her from the service under Army Regulation 635-200 (Personnel Separation-Enlisted Separations)
* 10 December 2009 – for making disparaging, disloyal, and half-truth statements about the company, battalion, and leaders in the battalion
* 31 December 2009 – monthly (December) counseling
* 17 January 2010 – professional growth
* 30 January 2010 – being disrespectful in language and failing to report
* 31 January 2010 – monthly (January ) counseling
* 27 February 2010 – professional growth and development
* 27 March 2010 – failure to follow instructions, applicant refused to sign

6.  In an undated memorandum for record (MFR), in response to the counseling dated 27 March 2010, she stated that the attempt to file a Uniform Code of Military Justice (UCMJ) action against her was in retaliation for filing a congressional complaint dated 8 January 2010.  She stated that after filing the congressional she was booted out of the unit to perform duties at the Entry Control Point on 8 March 2010 and was found to be offensive in that she contacted another non-commissioned officer for a ride to her ECP4. 

7.  An Article 15 Punishment Worksheet shows that on an unspecified date the applicant’s company commander initiated a company grade Article 15 against the applicant (reason unspecified).  The punishment included a reduction to pay grade E-3, suspended for 180 days, a forfeiture of $463.00 pay for 1 month, and 14 days of extra duty and restriction.  A copy of this Article 15 is not located in her records.  

8.  On 29 March 2010, the applicant’s company commander initiated a flagging action against her for adverse action.  

9.  She received the following counselings on 6 April 2010:

* Initial – continuation of current duty assignment as the assistant operations clerk and physical fitness
* Monthly Performance – performance, wear and appearance of uniform, military bearing, military/civilian education, and upcoming events
* not being recommended to attend the promotion board for the month of May because of a flagging action due UCMJ action


10.  She also received the following counseling on:

* 8 July 2010 – for not being recommended for a promotion board until the flagging action was lifted – refused to sign  
* 27 July 2010 – initial counseling from her new team leader of her expectations – applicant agreed
* 6 August 2010 – for being ineligible to attend the August promotion board due to past adverse action and the flagging action– refused to sign
* 31 August 2010 – end of month (August) counseling, keep on improving and keep up with college course – applicant agreed
* 28 September 2010 – end of month (September), keep attending Army Career and Alumni Program appointments and keep up motivation – applicant agreed

11.  On 20 November 2010, she was honorably released from AD in pay grade E-4, under the provisions of Army Regulation 635-200, chapter 4, for completion of required active service, and transferred to a Reserve unit.  Her DD Form 214 shows she was credited with completing 3 years, 5 months, and 21 days of net active service and she had no recorded time lost.  Item 27 (Reentry Code) of her DD Form 214 shows an RE code of "1."

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 establishes policy and prescribes procedures for separating Soldiers upon expiration of term of service or fulfillment of service obligation.  

13.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), states that prior to discharge or release from AD individuals will be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 of the regulation includes a list of Armed Forces reentry codes, including Regular Army RE codes.  RE-1 applies to persons qualified for enlistment if all other criteria are met.  

DISCUSSION AND CONCLUSIONS:

1.  On 30 May 2007, the applicant enlisted in the RA and she deployed to Afghanistan on 28 April 2009.  Between June 2009 and November 2010 she received several performance, event, and disciplinary related counseling statements.  Sometime in March 2010, it appears she accepted NJP under Article 15.  Her punishment included a suspended reduction to pay grade E-3. 


2.  The evidence of record also shows a flagging action was initiated against her on 29 March 2010 because of the NJP.  She was counseled and advised that 
she was not being recommended for promotion during that period of time.  There is no evidence the flagging action was lifted prior to 20 November 2010.  However, if it had been initiated due to the Article 15 (which appears to have been imposed on or about 29 March 2010), it would/should have been lifted on or about 29 September 2010 (at the expiration of the suspended reduction).

3.  She was honorably released from AD in pay grade E-4 for completion of required active service on 20 November 2010.  She is currently serving in the USAR and her assigned RE-1 makes her fully eligible for reenlistment.

4.  The contentions have been noted; however, there is an insufficient evidentiary basis to support granting the requested relief.  Neither the applicant nor counsel provided sufficient evidence to show the applicant was unjustly or improperly released from AD in November 2010.  

5.  The applicant was released from AD upon completion of her enlistment commitment in accordance with pertinent regulations in effect at the time.  There is no evidence to show she was released from AD based on misconduct or adverse action.  

6.  There is also no evidence of record and none was provided by the applicant or her counsel to show her flagging action was inequitable and that this action unjustly prevented her from reenlistment, or that the flagging action was based on the applicant’s congressional complaint.  

7.  Based on the foregoing evidence neither the applicant nor counsel have provided clear and convincing evidence and/or argument that shows she is entitled to revocation of her 20 November 2010 discharge action, reinstatement on AD with entitlement to back pay and allowances, or credit for time in grade for pay, promotion, and retirement purposes.

8.  Regarding the applicant's request for an opportunity to apply for the FLEP; this program is open to commissioned officers in the rank of second lieutenant through captain.  The Officer of The Judge Advocate General annually accepts applications for the Army’s FLEP.  The applicant may contact her local Staff Judge Advocate for further information.  


BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   X_______   ___
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20110004133



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ABCMR Record of Proceedings (cont)                                         AR20110004133



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