IN THE CASE OF: 

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120002015 


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 that his separation designator code (SPD) be corrected to show he was entitled to 180 days of medical coverage and separation pay.

2.  The applicant states:

* he was a "whistle blower" regarding issues at his former command
* after being recommended for elimination, he appeared before a Board of Inquiry (BOI) 
* the command and medical system were found to be at fault and the command environment was listed as hostile
* although he was found not to be at fault and reinstated into flight school, the backlash continued until he was removed from the school and Army
* his new command used information from the previous command against him
* his character was misrepresented resulting in an unfavorable environment

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 11 pages of self-authored statements
* six certificates
* five letters of recommendation
* two letters of commendation
* a Current Close Hold Report
* two DA Forms 4856 (Developmental Counseling Form)
* nine letters of recommendation for retention
* seven self-authored memoranda for record
* four memoranda
* a DA Form 2823 (Sworn Statement)
* his BOI, Summary of Proceedings
* his Board of Elimination Proceedings

CONSIDERATION OF EVIDENCE:

1.  After prior enlisted service, the applicant was appointed as a warrant officer in the U.S. Army Reserve on 22 December 2004 and ordered to active duty on 27 July 2005 for the purpose of attending flight school.  

2.  He submitted five Certificates of Appreciation that he earned for support of Naval recreational activities from 26 October 2001 to 23 October 2002.

3.  He submitted a Certificate of Excellence for administering the Heimlich Maneuver on a choking man on 18 October 2002.

4.  He submitted five letters which show he was recommended for the Warrant Officer Candidacy program.

5.  He submitted four pages of an eight-page document entitled “Current Close Hold Report.”  This correspondence showed that from 10 October 2005 through 
27 July 2009 his command opined that the applicant's unsatisfactory performance at flight school was due to his absences from class, on-going medical issues, and appointments that appeared to be malingering.  As a result, it was recommended he appear before a BOI regarding his potential elimination from the program for unsatisfactory performance.  This was determined once it was discovered that he did not meet the criteria for a medical elimination. 

6.  He submitted nine memoranda for record, dated 24 September 2007 to 17 August 2008, wherein he essentially indicated he was providing information regarding actions being taken towards himself and his fellow students in the form of: 

	a.  verbal and physical abuse, harassment, and degradation of students by cadre, miscellaneous mistreatment, threats of counseling, cadre making advances toward students and their wives, alcohol in the office, favoritism, and personal vendettas against students;

	b.  a fellow student rendering a false statement claiming the applicant used his name without permission; and

	c.  continued wrongful treatment included being told he was wrong, being transferred to the funeral detachment, being eliminated from flight school due to on-going medical-related issues and patterns of retribution after he submitted memoranda and subsequently spoke with the Inspector General (IG) and the battalion commander.

7.  He submitted:

	a.  two letters commending his effort as a team leader during military funeral services;

	b.  two DA Forms 4856, dated 7 and 18 March 2008, respectively, which show he was counseled for failing to meet the company standards by not showing up for mandatory physical training (PT) and for leaving in excess of 20 minutes during PT; 

	c.  a letter from the Office of the IG, Washington, DC, dated 31 March 2008, acknowledging receipt and the forwarding of his 28 March 2008 letter concerning the alleged maltreatment to the IG of the U.S. Army Training and Doctrine Command (TRADOC).  He did not provide any correspondence from TRADOC;

	d.  an unnotarized DA Form 2823, dated 10 April 2008, wherein he reiterated alleged illegal, unethical, immoral, or unsafe acts by the chain-of-command and cadre;

	e.  a self-authored memorandum, dated 13 August 2008, Subject:  Request for Reconsideration of Medical Disqualification from Aviation Duties, wherein he requested that his elimination from flight school due to medical problems be stopped and he be reevaluated;  

	f.  a memorandum from the U.S. Army Trial Defense Services, Fort Rucker, AL, Subject:  Attorney Memorandum Reference Elimination of the Applicant, dated 3 April 2009, who stated the applicant was notified of the initiation of elimination from the U.S. Army for failure of a course even though he was removed for medical not academic problems; 

	g.  nine memoranda for record, dating from 15 August 2008 to 2 February 2011, recommending him for retention in the U.S. Army; and
	
   h.  a self-authored memorandum, dated 7 April 2009, Subject:  Rebuttal to Elimination Action, wherein he reiterated that he should not be eliminated from the Aviation program or active duty and that his elimination from flight school due to medical problems be stopped and he be reevaluated.  

8.  On 30 July 2009, a BOI convened to consider whether the applicant should be administratively separated from the USAR.  The BOI heard the testimony of the applicant and government witnesses and recommended he be retained.

9.  On 4 May 2011, an Army Board of Review for Eliminations convened to review the recommendation of a subsequent BOI, which is not included in these proceedings.  That board found that the applicant failed to keep pace or progress with his contemporaries, as demonstrated by a low record of efficiency when compared to other officers of the same grade and competitive category, and that he failed the course at a service school for academic reasons.  

10.  His record contains and he submitted:

	a.  A memorandum from the Deputy Assistant Secretary of the Army Review Board, Manpower and Reserve Affairs, Arlington, VA, dated 10 May 2011, Subject:  Officer Elimination Case, which stated:

		(1)  a BOI held on 3 February 2011 recommended the applicant be separated from the Army based on substandard performance of duty with an Honorable Discharge Certificate.  The applicant's record is void of and he did not submit the findings of the BOI held on 3 February 2011;

		(2)  on 4 May 2011, the Department of the Army Board of Review for Eliminations recommended he be eliminated from the U.S. Army based on substandard performance of duty with an honorable characterization of service; and

		(3)  on 10 May 2011, the approval authority approved the board's recommendation to eliminate the applicant from the U.S. Army based on substandard performance of duty in accordance with Army Regulation 600-8-24 (Officer Transfer and Discharges), paragraph 4-2a with an honorable characterization of service.

	b.  A U.S. Army Human Resources Command message, dated 11 May 2011, Subject:  Officer Elimination, providing instructions to the applicant's command to issue orders and a DD Form 214 effecting his discharge.  

	c.  A memorandum, dated 12 May 2011, showing he acknowledged receipt of the notification of the intended separation date of 26 May 2011.

11.  On 26 May 2011, he was honorably discharged under the provisions of Army Regulation 600-8-24, paragraph 4-2a.  The DD Form 214 he was issued shows in:

* item 26 (Separation Code), "JHK"
* item 28 (Narrative Reason for Separation), “Substandard Performance”

12.  During the processing of this case, a staff member of the Board requested the Department of the Army Inspector General (DAIG) verify if the applicant was the subject of a whistle blower case.  The DAIG response shows there was no whistle blower case related to the applicant.

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in part, that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record (PQR), Enlisted/Officer Record Brief (ERB/ORB), or any other document authorized for filing in the Army Military Human Resource Record (AMHRR).

14.  Army Regulation 600-8-24 established the policy 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.  Paragraph 4-2a(14), in part, states elimination action may be or will be initiated as indicated below for the discovery of any other condition concerning a probationary officer that indicates the officer's retention in the Army would not be in the best interest of the United States.

15.  Army Regulation 600-8-24, paragraph 4a, states, in part, that an officer will be discharged for substandard performance of duty if:  (1) A downward trend in overall performance resulting in an unacceptable record of efficiency, or a consistent record of mediocre service; (2) Failure to keep pace or to progress with contemporaries, as demonstrated by a low record of efficiency when compared with other officers of the same grade and competitive category;        (3) Failure to exercise necessary leadership or command expected of an officer of their grade; (4) Failure of an officer to absorb technical proficiency required for grade and competitive category; (5) Failure to properly perform assignments commensurate with an officer’s grade and experience; and (6) Apathy, defective attitudes, or other characteristic disorders to include inability or unwillingness to expend effort.

16.  Army Regulation 635-5-1 (SPD Codes) provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  

17.  A separation code of "JHK" applies to officers who were involuntarily discharged for substandard performance of duty under the provisions of 
Army Regulation 600-8-24, paragraph 4-2a(2).  

18.  Department of Defense Financial Management Regulation (DODFMR) 7000.14.R, Volume 7A, Chapter 35, Section 350202(J), states military service members are not eligible for separation pay if the member is an officer who is separated for substandard performance.

19.  Title 10, U.S. Code, Section 1145, states in part, that in order to be eligible for transitional health care a member of a reserve component who is separated from active duty must have been called or ordered to active duty in support of a contingency operation if the active duty is active duty for a period of more than 
30 days.

DISCUSSION AND CONCLUSIONS:
1.  By regulation, the SPD code of JHK is the proper code to assign members separated under the provisions of Army Regulation 600-8-24, paragraph 4-2a, by reason substandard performance.  Therefore, the SPD code assignment was and remains valid. 

2.  In accordance with DODFMR 7000.14.R, officers who are separated by reason of substandard performance are not entitled to separation pay.  Therefore, he is not entitled to have his record corrected to show he was authorized separation pay. 

3.  In accordance with Title 10, U.S. Code, Section 1145, a member of the Reserve Component must be ordered to active duty in support of a contingency operation in order to be eligible for transitional health care.  Evidence of record shows he was ordered to active duty for the purpose of attending flight school.  Therefore, he is not entitled to have his record corrected to show he is authorized 180 days of transitional health care.



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)                                         AR20120002015





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ABCMR Record of Proceedings (cont)                                         AR20120002015



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