MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 December 2001
         DOCKET NUMBER: AR2001058677

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Eric N. Andersen		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: Restoration to the pay grade of E-7 and restoration of all pay and allowances that were withheld from her.

APPLICANT STATES: That she was charged with being absent without leave and believes that once she was found not guilty of the charge, the remaining charges should have been thrown out. However, she was unjustly reduced to the pay grade of E-6 and fined $789.00. In support of her application she submits an extensive packet of documents that consists of a sick slip (DD Form 689), a leave form (DA Form 31), a charge sheet (DD Form 458), the results of her approved summary court-martial, her appeal for relief, numerous third party statements, several copies of email and letter traffic which appears, were not intended for the applicant, copies of evaluation reports, inspector general and judge advocate general reviews, a mental health evaluation, flagging actions, and a copy of her civilian attorney’s appeal of the punishment she received at her court-martial.

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

She enlisted in the United States Army Reserve (USAR) on 22 April 1980 and has remained in the USAR through a series of continuous reenlistments. She entered the Active Guard Reserve (AGR) Program on 7 March 1986 and it appears that she has served continuously on active duty since that time. She was promoted to the pay grade of E-7 on 1 June 1990.

On 29 July 1999 the applicant underwent a mental health evaluation, which revealed that the applicant was experiencing considerable distress related to her job. She perceived the workplace as hostile and had received numerous negative counseling statements since her arrival at Fort McPherson. The examining psychologist recommended that she be released from her present work setting as expeditiously as possible.

She again underwent a mental health evaluation on 23 November 1999, which determined that she met retention standards, that she had no psychological defects that warranted disposition through medical channels, that she was mentally sound and able to appreciate any wrongfulness of conduct and that she was cleared for any administrative proceedings deemed appropriate. The psychologist again recommended that she be released from her present work setting.

On 26 January 2000, the applicant’s defense counsel submitted a request to the applicant’s commander on behalf of the applicant regarding a proposed bar to reenlistment and a proposed relief for cause noncommissioned officer evaluation report (NCOER). She advised the commander that the actions were not initiated in accordance with the applicable regulations, in that she had not been counseled, had been denied the training necessary to do her job, that applicant felt the actions were being taken in reprisal for the applicant submitting an Equal Opportunity complaint and made references to her not taking a physical fitness test since her arrival in the unit, when she actually had a valid physical profile. She requested that the actions be withdrawn, that a commander’s inquiry be conducted and that she be transferred to another unit. The outcome of her request is not present in the available records.

A review of the applicant’s records show that the applicant initially entered the Army as a medical specialist and eventually became a practical nurse. When she entered the AGR program she served as a successful USAR field recruiter from 1986 to 1998, when she was assigned as a ward master at a USAR hospital detachment at Fort McPherson. The only noncommissioned officer evaluation report (NCOER) contained in her Official Military Personnel File (OMPF) for that position is a relief for cause report that was completed on 15 February 2000. There is no other adverse information contained in her OMPF.

On 23 February 2001, while serving on active duty in a USAR unit in Georgia, charges were preferred against the applicant for being AWOL from 27 to 29 November 2000, for failure to go to her place of duty on 30 November 2000, for five specifications of being disrespectful in language towards a commissioned officer, for two specifications of disobeying a lawful command from a commissioned officer and one specification of theft.

She was convicted by a summary court-martial on 27 February 2001 of being AWOL from 27 to 29 November 2000; however, the convening authority subsequently dismissed that charge. She was also convicted of two specifications of being disrespectful in language towards a commissioned officer and two specifications of disobeying a lawful order from a commissioned officer. She was found not guilty of the remaining specifications. She was sentenced to a reduction to the pay grade of E-6 and a forfeiture of $1,578.00. However, the convening authority approved only so much of the sentence that provided for a reduction to the pay grade of E-6 and a forfeiture of $789.00.

On 15 March 2001, the applicant’s civilian attorney submitted a request to the Office of the Staff Judge Advocate (SJA) at Fort McPherson, Georgia, requesting relief from the court-martial findings and sentence on behalf of the applicant. The final outcome of the request is not present in the available records; however, the legal review conducted by the SJA concluded that the sentence, as modified by the convening authority, was legally sufficient and that the defense counsel’s allegations of error were without merit.

The documents submitted by the applicant with her application include a photo copy of a DA Form 31 showing that she was granted leave from 27 to 28 November 2000. The leave form does not contain a control number. The copies of two sick slips provided by the applicant are dated 29 and 30 November 2000 and indicate that on 29 November 2000 she was given 72 hours of quarters with a follow-up scheduled for 1 December 2000. On 30 November 2000, she was seen on sick call for knee pain and high blood pressure. She was directed to return for a blood pressure check on 4 December 2000.

In the application for relief from court-martial findings and/or sentence (DA Form 3499), she contended, in effect, that the allegations for which she was convicted were false and that given that other allegations were found to be false, the charges should have been dismissed. She requested that she and her accuser (a female lieutenant colonel) be given a polygraph examination to determine who was telling the truth. She also contended that the reviewing authority unjustly relied on the SJA review of her case to make his decision.

On 20 May 2000, the Army Reserve Personnel Command (ARPERSCOM) notified the applicant (20-year letter) that she had completed the required years of service to be eligible for Retired pay at age 60 (28 August 2005). Her expiration of term of service (ETS) at that time was 14 September 2001. Coordination with officials at the ARPERSCOM indicates that she was discharged at her ETS.

The Manual for Courts-Martial provides the maximum punishments allowed for offenses in which soldiers are found guilty at trial by court-martial. It provides, in pertinent part, that the maximum allowable punishment for violation of Article 86 (Disrespect toward a superior commissioned officer) is a bad-conduct discharge, forfeiture of all pay and allowances and confinement for 1 year. The maximum punishment for violation of Article 90 (Willfully disobeying a superior commissioned officer) is a dishonorable discharge, forfeiture of all pay and allowances and confinement for 5 years.

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. 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.

2. The applicant’s contention that once the convening authority dismissed the charge of AWOL, the rest of the charges should have been dismissed as well, appears to be without merit. While the applicant was able to convince the convening authority that she was not AWOL or that she should receive the benefit of any doubt that existed in the matter, she was unable to convince him that such was the case with the remaining offenses for which she was found guilty.
3. While the Board does not have the benefit of having heard the testimony or reviewing the evidence submitted at her trial by court-martial, she was afforded the opportunity to assert her innocence and provide testimony in her defense, with the assistance of counsel. However, she did not convince the court-martial panel during her trial or the convening authority in her appeal, that she was innocent of all charges. Accordingly, based on the available evidence of record and the evidence submitted by the applicant, it appears that the convening authority was within his authority to approve the punishment he directed.

4. It is also apparent that the convening authority reviewed all of the facts and circumstances of the case because he reduced the amount of punishment recommended by the court-martial panel and dismissed one of the charges. However, the remaining charges of guilty were not dismissed and the punishment is well within the punishments allowed under the Manual for Courts-Martial.

5. While the applicant has submitted numerous documents which show that she encountered difficulties while assigned to her unit, those documents do not establish her innocence of the charges for which she was found guilty. Likewise, they also do not establish that she did not contribute to the problems she encountered or that they were unfounded.

6. Regardless of the circumstances surrounding her difficulties in her new assignment, she was found guilty of charges, which are not acceptable conduct for any soldier, especially one with as many years of service as the applicant has. The Board also notes that there were other avenues/alternatives for the applicant to pursue if she had grievances with her superiors and it appears that she failed to exercise the proper judgment at the time to pursue a more professional resolution of those grievances. Therefore, the Board finds no basis to change the punishment she received at the trial by court-martial.

7. 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

__jhl____ ___mkp__ __ena___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058677
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/12/04
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 325	133.0300/VOID REDUCTION
2.
3.
4.
5.
6.