MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 April 2003
         DOCKET NUMBER: AR2003086047

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor Jr.		Chairperson
Ms. Terry L. Placek		Member
Mr. Robert Duecaster		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: In effect, reinstatement of her rank to staff sergeant (SSG).

APPLICANT STATES: In effect, her reduction was premature and unjust. She claims that she was already under a financial strain upon her arrival at her unit. Her daughter is medically dependent on her for the rest of her life, and her condition is what brought them to the area of their new assignment. She states that her daughter was sexually abused and assaulted by her father while she was serving overseas in Korea. As a result of court-actions required to resolve this issue (criminal court, juvenile court, and divorce court), money was short because she was ordered to pay all outstanding bills. She claims that she received a compassionate reassignment to Fort Myer, Virginia, after it was determined that her daughter’s medical condition could no longer be treated in Japan. She also states that she addressed her situation with members of her chain of command upon her arrival at Fort Myer, and she sought financial assistance from Army Emergency Relief (AER). AER personnel referred her to a lawyer to file for bankruptcy. She claims that if she had been made aware that she was under a suspension of favorable personnel actions (FLAG), she could have explained what was going on to her supervisors.

The applicant further states that her reduction has only made the strain that much more difficult. She also claims that during this period there were multiple deaths in her family, which included her father. She indicates that her mother, who is an insulin supported diabetic, also needed her support, which she was unable to provide after the reduction. She states that she filed for bankruptcy to rid herself of some difficulties so she could regain control of her situation without her superiors having to do so. She states that she earned her stripes and for one to be taken away unjustly after 15 years of excellent service was a really hard blow. She also claims that it has impeded her career progression. She claims that as a leader, she would have evaluated the situation and determined that it was not feasible for a single soldier already in a difficult financial situation to be compassionately reassigned to the Military District of Washington (MDW) area, a high cost area.

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

She initially enlisted in the Army on 27 May 1987, and she has continuously served on active duty since that date. As of the date of her application, she was serving at Fort Myer, where she was assigned in August, 2000.

The record shows that she was promoted to the rank of SSG/E-6 on
1 September 1995, and that she was reduced to sergeant (SGT) for cause on
14 February 2001.

On 9 February 2001, while she was serving as a SSG at Fort Myer, the applicant was notified by her unit commander that he was considering whether she should be punished under Article 15 of the UCMJ, for being derelict in the performance of her duties; and for failing to pay a $4,186.47 debt to the Bank of America. The applicant elected not to demand a trial by court-martial, and instead chose for the matter to be handled by her unit commander in a closed hearing.

On 14 February 2001, the applicant accepted NJP, and her punishment included a reduction to SGT, and a forfeiture of $500.00 per month for six months (suspended), and the applicant elected to appeal the punishment.

On 23 February 2001, trial counsel, a legal representative of the installation staff judge advocate (SJA), considered the applicant’s appeal and opined that the proceedings were conducted in accordance with the law and regulations. Counsel further stipulated that the punishment was appropriate and not excessive. On 26 February 2001, the appeal authority considered all matters presented and denied the applicant’s appeal.

Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. Chapter 3 implements and amplifies Article 15, UCMJ. It states, in pertinent part, that the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the soldier. Clear injustice does not include the fact that the soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the soldier.

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 notes the applicant’s contention that her rank should be restored because her reduction was premature and unjust, and it carefully considered the hardship factors she submitted in support of her request. However, it finds these factors are not sufficiently mitigating to warrant the requested relief.

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2. By regulation, in order to set aside NJP properly imposed there must be a determination that, under all the circumstances of the case, the punishment resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the soldier. Clear injustice does not include the fact that the soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the soldier. Although the applicant has presented many hardship factors in support of her application, the Board finds no evidence that shows a clear injustice exists in this case.

3. The evidence of record confirms that the NJP accepted by the applicant on
14 February 2001, was accomplished in accordance with the applicable regulation. In addition, her appeal was considered and denied by the proper authority. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the NJP process.

4. 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.

5. 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

___tlp___ __rd ____ ___rvo __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086047
SUFFIX
RECON
DATE BOARDED	2003/04/24
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 192	110.0300
2.
3.
4.
5.
6.