ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 June 2019 DOCKET NUMBER: AR20180001129 APPLICANT REQUESTS: Through counsel: * removal of an erroneous flagging action * payment of separation pay APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 15 July 2008 * DD Form 1966 (Record of Military Processing Armed Forces of the United States), dated 29 July 2008 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 25 July 2016 FACTS: 1. The applicant states through counsel in pertinent part: a. At the end of April 2016, the company was required to do height and weight check to ensure compliance with Army body composition standards. Approximately two-weeks after this check occurred, the applicant was notified that she had not met height/weight requirements. She was advised that taping had to be re-done and, as a result of being slightly out of compliance for the April taping, an adverse action flag would be initiated. She assured the command she would be in compliance at the next taping as she would be clearing shortly due to reaching her retention control point and wanted to join the Army Reserves for a 3-year commitment to receive her full separation pay. b. As she approached her terminal leave date she was told that her orders could not be properly cut until the flag was lifted thereby changing the code on her Enlisted Record Brief (ERB) from a 9Z [sic] code to a 9G [sic] code. She sought permission to accomplish a re-taping prior to her separation from active duty and subsequently requested permission to return for re-taping at the end of June 2016. No re-taping occurred. As her time in active service was drawing to an end, she decided to report the situation to the Inspector General (IG). The IG advised her that she would receive a call from her chain of command so the taping could be completed prior to her Expiration Term of Service (ETS) thereby lifting the flag and allowing for reenlistment in the Reserve Component. Again, she was never contacted and no taping occurred. c. Based on the response (or lack thereof) from her IG complaint, she attempted to use the commander's open-door policy to seek some redress for the situation. At this point she was in compliance with height/weight and advised the commander that, absent a re-taping the flag would remain and thus she would be unable to meet her Reserve enlistment commitment. She further shared how she had not received any additional counseling or direction other than being told that she missed requirements in the April taping. The commander acknowledged the issue and assured her he would look into what had occurred and get it resolved before her ETS date. He requested 48 hours to investigate, however, after that period had come and gone, she still heard nothing. A bit over a week later she was contacted for an in-person meeting with the commander. She was advised that he had sworn statements from two other individuals in the company indicating that she had been re-taped on 7 July 2016. She asserts that no such taping ever occurred and if such a statement exists it is either mistaken or intentionally falsified. She finished her term of service on 31 July 2016, without ever being properly re-taped. Moreover, since the flag remained in her jacket, she was prevented from reenlisting in the Reserve component thus resulting in significant monetary loss relating to her separation pay. d. The initiation of a suspension of favorable personnel action (hereinafter flag) is not intended to be punitive. It is, in fact, a method to prevent or preclude favorable actions or movements of Soldiers that may be in an unfavorable status. See Army Regulation (AR) 600-8- 2 (Suspension of Favorable Personnel Actions (Flags)); chapter 2, paragraph 2-1. Likewise, the regulation requires that "active flag cases will be reviewed at least monthly and will be removed within three working days after a Soldier's status changes from unfavorable to favorable. In the instant case, the applicant does not dispute that at the time of the April 2016 taping she was slightly outside of height and weight standards. What is disputed however, is the issue involving re-taping prior to her ETS date. She asserts (and the evidence supports) that no taping occurred on 7 July 2016. That date was included in a period of block leave pertaining to the 4th of July holiday meaning Soldiers were not around during this time. This fact lends credibility to her assertion as the occurrence of any taping during a period of block holiday leave where most Soldiers are absent is extremely unlikely. e. Moreover, the document relied upon by the commander to substantiate the alleged taping, specifically DA Form 5501 (Body Fat Content Worksheet (Female)), can be created arbitrarily as it does not require the signature of the Soldier being taped. Stated another way, absent some verification from the individual being taped, there exists no possibility of objective verification. Resolution of the taping issue based solely upon this document requires subjective reliance on the documents veracity and lacks the possibility of confirmation. The materiality of such an unconfirmed assumption particularly as it relates to her is beyond question. She was, based completely upon assumption with no objective verification, deprived of her ability to continue her service and, as a direct result suffered significant financial loss. Taken to its logical conclusion, reliance on an unsigned and unverifiable document to sustain such an action is tantamount to allowing arbitrarily elimination of continued service absent any of the required protections of even minimal due process. Surely this could not have been an intended consequence. There can be no doubt regarding the ease with which this issue could have been resolved had the command desired to do so. She was on terminal leave and separating from the unit. She had made it known that her desire was to enlist in the Reserve component to meet the requirements necessary to receive her full separation pay. She had sought out, multiple times and at multiple levels, assistance with the re-taping process. In fact, a simple re-taping of her (as she had requested on multiple occasions) could have solved this issue with a fraction of the effort than the seven days of gathering statements and unverified documents seemingly designed to support a position knowingly directly harmful to a separating Soldier who had completed her service honorably. Based on the facts of this case there exists no reasonable explanation why she was not notice [sic] of issues requiring attention and correction. This is clear from the frequency of the review requirement and the timeframe associated with removal of the flag. Thus, a plain reading of the regulation demonstrates that additional actions beyond simply initiation of a flag, are necessary should the desired end state not be achieved and additional punitive responses are required. Failure to implement the proper follow-on actions serves to transform a measurable metric for positive change into a subjectively punitive action having not only a detrimental effect on the Soldier involved but also a deleterious impact on unit morale as a whole. Such is the reason why the requirements to initiate a flag for the Army Body Composition Program are specific and entail actions on the part of the Soldier as well as the command. f. Here, by all accounts, the flag in question was placed improperly and in violation of the regulation, no steps were taken on the part of the command to correct or even track the issue for which the flag was allegedly issued, and the net result of these oversights had, and continues to have, an injurious effect on the applicant. She was, by her own admission, outside of the prescribed height and weight standards in April 2016. There is no indication in the record or otherwise that she was properly counseled in accordance with AR 600-9 (The Army Body Composition Program), paragraph 3-6(a) (Notification Counseling). Although she was informed she was outside of standards, no such notification was made within 14 days after the taping was conducted. Likewise, she was not required to prepare an action plan, meet with a nutrition counselor, or complete any other requirement under the regulation. Instead, she was simply advised that she was out of compliance and would be rechecked at some time in the future. A plain reading of the regulation in conjunction with the above clearly indicates that the placement of the flag was not in compliance with the express requirements or the regulation. Likewise, the flag appears to have been initiated outside of the 72-hour window and effectively ignored for the remainder of her time on active duty and beyond. Since she could not reenlist due to the flag, the command’s inaction regarding its correction/removal had the effect of creating a constructive bar to reenlistment without the necessary due process protections thereby constituting an injustice. The injustice is material because she suffered both an inability to join a Reserve component and a loss of significant funds to which she was otherwise entitled. 2. A review of the applicant’s service records show the following on: * 29 July 2008 – enlisted in the Regular Army * 17 September 2014 – the applicant’s then immediate commander, by memorandum, notified her of his intent to disqualify her for the Army Good Conduct Medal because she was under two flags, one being a KA code (Adverse Action Army Weight Control Program) * 25 May 2016 - ERB shows a flag was initiated under flag code KA * 25 July 2016 – honorably discharged from active duty, DD Form 214 shows she completed 7 years, 11 months, and 27 days of net active service * her record is void of any documentation pertaining to the Army Body Composition Program 3. The applicant provides through counsel DD Form 1966 showing her processing into the military. 4. See applicable references below. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found insufficient evidence to grant relief. 1. The Board denied that portion of the applicant’s request regarding removal of the flag for Adverse Action Army Weight Control Program. The applicant admits and the record shows that the applicant received the flag on 25 may 2016 and there is nothing in the record and the applicant does not provide evidence to show that she was ever retaped and met height and weight standards before her discharge on 25 July 2016. 2. The Board also denied that portion of the applicant’s request regarding separation pay. The Board found that the applicant was flagged at the time of her separation and was therefore ineligible to enlist into the USAR, a criteria required for separation pay eligibility. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. AR 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) in effect at the time states in : a. Paragraph 2-6, the flagging authority, unit commander, or first line supervisor will counsel all Soldiers on active duty, in writing, upon initiation of any flag within 2 working days unless notification would compromise an ongoing investigation. Counseling should include reason for the flag, requirement for flag removal, and action prohibited by the flag. All flagged Soldiers will be provided a copy of the DA Form 268 (Report to Suspend Favorable Personnel Actions) when the flag is initiated and when it is removed. b. Paragraph 2-7, it is the commander’s responsibility to ensure a DA Form 268 is immediately initiated on a Soldier and that the flag is input into the human resources systems when the Soldier’s commander determines that one or more of the conditions in this regulation exist. c. Paragraph 2-9, only officers authorized to direct initiation of a flag may direct removal of a flag. Once a flag is removed, the battalion S1 or unit will notify the career counselor concerning the Soldier’s eligibility for reenlistment. Noncompliance with the Army Weight Control Program flags will be removed on the date of compliance. The date a Soldier completed a previous weight control program remains on the flag report for 36 months. 2. Department of Defense Instructions 1332.29 (Involuntary Separation Pay (Non- Disability) paragraph 3.1 states a member is entitled to full separation pay when the following five criteria are met: * the member has completed at least 6 years, but fewer than 20 years of active duty * separation is characterized as honorable * the member is being involuntarily separated by the military service concerned through their denial of reenlistment or the denial of continuation on active duty * the member has entered into a written agreement with the military service concerned to serve in the Ready Reserve of a Reserve component for a period of not less than 3 years * the member has signed the mandatory disclosure statement pertaining to military retired or retainer pay 3. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 states, the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180001129 5 1