RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 NOVEMBER 2004
      DOCKET NUMBER:  AR2004103179


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Ms. Eloise Prendergast            |     |Member               |
|     |Mr. Robert Rogers                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that a 2002 Record of Proceedings Under Article
15, UMCJ (Uniform Code of Military Justice) be expunged from her file and
that her rank of Specialist (SP) 4 be reinstated retroactive to the date
she was reduced to pay grade E-3.

2.  The applicant states, in a self-authored statement, that she had earned
her Bachelor of Arts degree by the age of 22 and that she “had also
completed by [sic] graduate studies in a dual Masters program.”  She states
that she was one of the “very first women in history to enlist” in her
specialty and that as such, her “drill sergeants were quite curious about”
her, and after discovering her background “commenced to wage an unending
campaign of harassment.”  She states that she was repeatedly told she did
not deserve her rank, could not make it in her specialty, and did not
deserve to be at Fort Bliss, Texas.

3.  She states, in effect, that she was subjected to “touching, grabbing,
kissing, taunting, hazing” and that “that was the life we were accustomed
to living” but that it was “tedious and professionally demoralizing….”

4.  She states that she approached her superiors with the problems and was
told there were not any issues and that it would only get worse when she
arrived at her first duty station.  She states she consistently felt
singled out and violated in a setting she considered hostile.

5.  The applicant states that as a result of her command’s lack of action,
she contacted the Fort Bliss Inspector General and that after contacting
the Inspector General’s office was “confronted and directly threatened by
[her] commander, first sergeant, senior drill sergeant, and at least four
other drill sergeants who were present at this time.”  She states that her
commander remarked that her “college degree and intelligence were getting
in the way of a success in the Army.”  She states that the Inspector
General did nothing.

6.  She notes that within a matter of weeks her “spotless performance
record” became tainted “with one negative counseling statement after
another” and ultimately “by a company grade Article 15” which resulted in
her loss of rank, extra duty, and “repeated public humiliation.”  She
states that her military attorney labeled the NJP (nonjudicial punishment)
action as “completely bogus” and “ridiculous.”  She states that it is still
unclear to her what infractions she committed.

7.  She states that the NJP reflects two offenses “violating a mobile phone
policy letter and making a false official statement.”  She states one of
the offenses was dismissed at her hearing but never documented and that the
second offense was even more vague.  She states that regarding the
“statement” she had written could not be considered an official statement
because it was written under duress after she had “refused to sign
anything.”

8.  She states that she provided evidence and witnesses at her hearing but
her commander responded that he did not have a Master’s degree but knew she
was guilty.  She states that she knew from the beginning that they wanted
to make an example of her.

9.  She states that in spite of the support from her trial defense attorney
and the brigade trial counsel, and that her appeal was granted in part, her
rank was not reinstated.  She states that after continually requesting to
see her battalion commander she was ultimately allowed to on the day she
was graduating, only to be told that his logic for reducing her was because
she called into question the integrity of a United States Army drill
sergeant.

10.  The applicant states that she came into the Army as an E-4 because she
worked hard to earn her degree and that she would have been eligible for
promotion to pay grade E-5 in November 2003 but because of her reduction
was not eligible for promotion to pay grade E-4 until May 2004 and as such
would not be able to promoted to pay grade E-5 prior to the expiration of
her enlistment contract.

11.  She states that her rights have been “grossly violated” and
specifically cites violation of Articles 31 and 31b, the Military Rules of
Evidence Rule 304, the Military Whistleblower’s Protection Act, and the
First Amendment of the Constitution of the United States.

12.  The applicant provides a copy of the NJP action, in addition to her
self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant was born in
May 1978 and was awarded a Bachelor of Arts (BA) degree in May 2000 from
West




Virginia University.  According to her enlistment documents she worked as a
graduate teaching assistant at the University of Wyoming between August
2000 and 2 December 2001, although there is no indication in available
records that she was granted any degrees beyond the BA degree in May 2000.
Between
3 December 2001 and when she entered active duty in May 2002, she indicated
that she was unemployed.

2.  On 21 May 2002 the applicant enlisted in the Army for a period of 3
years, in pay grade E-4, for training as a 14J (Early Warning System
Operator).

3.  According to the NJP action provided by the applicant, on 10 October
2002, she was punished under Article 15 of the Uniform Code of Military
Justice for failing to obey a policy letter regarding the use of mobile
telephones.  The NJP action indicates that the applicant violated that
order “on or about 29 September 2002.”  She was also punished, by the same
NJP action, for making an “official statement” to a staff sergeant “on or
about 29 September 2002” about the staff sergeant entering her room without
knocking.

4.  In acknowledging the NJP action, the applicant indicated that she did
not demand trial by court-martial, that she requested a closed hearing, and
that she did not ask for a person to speak on her behalf, but that she
would present matters in defense, mitigation, and/or extenuation, in
person.

5.  The applicant’s punishment included reduction to pay grade E-3,
forfeiture of $150.00, extra duty, and restriction.

6.  The applicant appealed the action.  In her appeal she indicated that
her unit commander had made it clear during her hearing that the
“violations involving my cellular telephone were insignificant, and that he
was dismissing them from the proceedings.”  She also stated that the unit
policy letter was not posted and as such it “would have been impossible for
[her] to possess any knowledge of said order.”  She stated that the staff
sergeant in question had provided an inaccurate description of events in
her initial counseling statement.  She argued that during her counseling
session she was not made aware of her rights under Article 31 and then went
on to relate what those rights were and how they had been violated.
Regarding the false statement, she argued that the staff sergeant had
contradicted his original account of the evening.  She states that when the
drill sergeant read her statement out loud, she realized the error she had
made and



offered to withdraw the statement in order to provide a more accurate
reflection of events.  She concluded her appeal by admitting her mistake
“in that [she] used [her] cell phone for one short moment” but did not
believe that the punishment of reduction in rank was warranted.  She noted
that a relatively minor incident could result in unwarranted severe
consequences.

7.  In reviewing the appeal, the battalion legal officer recommended
suspension of part or all of the punishments and noted that “given all
surrounding facts and circumstances, the imposed punishment appeared
relatively disproportionate to the offense committed.”  The battalion
commander only suspended the forfeiture.

8.  The record of proceedings is not filed in any portion, including the
restricted fiche, of the applicant’s Official Military Personnel File.

9.  Army Regulation 27-10, which establishes the policies and provisions
pertaining to the administration of military justice, states, in pertinent
part, that nonjudicial punishment is imposed to correct misconduct in
violation of the UCMJ.  Such conduct may result from intentional disregard
of, or failure to comply with, prescribed standards of military conduct.
Article 15 proceedings are not adversarial in nature and the commander is
not bound by the formal rules of evidence before courts-martial.  As an
example, the formal rules of evidence before a court-martial preclude
certain hearsay testimony, whereas a commander imposing nonjudicial
punishment may consider any matter, including unsworn statements that he
reasonably believes to be relevant to the offense in question.

10.  The regulation notes, in effect, that prior to imposing nonjudicial
punishment the imposing commander should investigate the matter promptly
and adequately. The investigation should provide the commander with
sufficient information to make an appropriate disposition of the incident.
The investigation should cover whether an offense was committed, whether
the soldier was involved, and the character and military record of the
soldier.  Usually the preliminary investigation is informal and consists of
interviews with witnesses and/or review of police or other informative
reports.  If, after the preliminary inquiry, the commander determines,
“based on the evidence currently available, that the soldier probably has
committed an offense and that a nonjudicial punishment procedure is
appropriate” he should take action as set forth in the regulation.
Included in those actions is the soldier’s right to demand a trial.  The
demand for trial may be made at any time prior to imposition of punishment.


11.  However, the regulation also states that a commander should not impose
punishment unless he is convinced “beyond a reasonable doubt” that the
soldier committed the offense.

12.  Black’s Law Dictionary defines “beyond a reasonable doubt” as, “fully
satisfied, entirely convinced, satisfied to a moral certainty….”
Reasonable doubt is defined as, “such a doubt as would cause prudent men to
hesitate before acting in matters of importance to themselves.”

13.  Army Regulation 27-10 also establishes the policies and provisions
whereby the punishment or any part or amount, whether executed or
unexecuted, is set aside and any rights, privileges, or property affected
by the portion of the punishment set aside are restored.  Nonjudicial
punishment is “wholly set aside” when the commander who imposed the
punishment, a successor-in-command, or a superior authority sets aside all
punishment imposed upon an individual.  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 which 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.

14.  Webster’s II New Riverside University Dictionary defines
“unquestionably” as, “not open to doubt or dispute” and “exculpating” as,
“to clear of blame.”

15.  Information obtained from various official military websites indicate
that women were first admitted to Air Defense Artillery fields in the early
1980 and that they currently serve in nearly every specialty and at every
level of command, including a women recently assigned as commander of an
Air Defense Artillery brigade.  In FY (fiscal year) 2002 women made up 7.7
percent of all Air Defense Artillery positions, while enlisted women made
up 15.5 percent of the entire enlisted force.  Currently, there are 54
enlisted women (3.8 percent) assigned in specialty 14J and 1400 men.  The
lower level can be attributed to the fact that specialty 14J was opened to
women within the last few years.

16.  Information from the enlisted promotions branch at the United States
Army Human Resources Command-Alexandria indicates that soldiers with 24
months time in service and 16 months time in pay grade E-3 may be
automatically promoted to pay grade E-4.  Soldiers with 18 months time in
service and 3 months time in pay grade E-3 are eligible for promotion
consideration to pay grade E-4 with waivers.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant may well have been the only woman training in her
specialty at the time she underwent training, she has provided no evidence,
beyond her own statement, that the NJP action was the result of retaliation
for reporting various actions and/or incidents to members of her chain of
command or to the Inspector General.

2.  Her argument that she was mistreated, not only because she was a woman,
but because of her advanced degree is also not supported by evidence
available to the Board.  It is noted that the applicant’s records indicate
that she held a BA degree, at the time she entered active duty, and not the
Masters degree she implied.

3.  She has provided no evidence supporting her argument that her rights
were violated.  While the applicant notes that her legal counsel indicated
that charges were “completely bogus” and “ridiculous,” she waived her right
to demand trial by court-martial, and permitted her chain of command to
determine her guilt or innocence.  The evidence indicates that the
applicant appealed her punishment, that her appeal was reviewed and that
while the forfeiture of pay was suspended none of the other punishments
were.

4.  Although the applicant’s NJP action is not filed in her Official
Military Personnel Action, she has not provided any evidence which would
indicate that there was any error or injustice in the imposition of the
action and as such, there is no basis to void the action.  Because the
Board finds no basis to void the NJP action, the Board also finds no basis
to restore the applicant’s grade retroactively to the reduction date.

5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MM__  ___EP __  ___RR __  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.





                                  ______Melvin Meyer________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004103179                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041116                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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