RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            14 October 2004
      DOCKET NUMBER:   AR2004104010


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 her rank of Sergeant, E-5 be restored.

2.  The applicant states that her record prior to her receiving the Article
15 was immaculate, the incident did not warrant the imposition of an
Article 15, and the Article 15 was possible reprisal in violation of the
Military Whistleblower Protection Act.  (Conversation between the Board
analyst and the office of the Department of the Army Inspector General
(DAIG) on 9 September 2003 indicated that the DAIG had no record of a
Whistleblower complaint from the applicant.)

3.  The applicant states, through a paralegal liaison with her U. S. Army
Reserve (USAR) unit, that the Article 15 was imposed for a miscommunication
through the chain of command.  Mitigating circumstances led up to the
altercation and the Article 15.  While in Korea, the applicant began
ACAPing (Army Career and Alumni Program) in February 2002. In March 2002,
she was informed there would be a field exercise in May 2002 and she was
concerned about having adequate time to complete processing appointments.
In May 2002, she was denied permission to remain with the rear detachment
to allow sufficient time to ACAP.  She wrote her Congressman.  She returned
from the field with 28 days remaining for ACAPing.  On 5 July 2002, she was
told to take another soldier's place on charge of quarters (CQ) duty on 7
July 2002.  On 7 July 2002, the misconduct allegedly occurred.  The Article
15 was read to her on 18 July 2002; she was given the Article 15 on 22 July
2002; she appealed it on 28 July 2002; and she departed Korea on 28 July
2002.

4.  The applicant's liaison states that it was all a miscommunication
between the applicant's commander and her first-line leaders.  Her
commander instructed her to tell her platoon leader to, in effect, find
someone else to pull CQ.  She was not ordered to perform the duty.  She did
not hang up on her first-line leader; her phone cut off.  Her first-line
leader appeared to be the individual who initiated most of the actions
against her.

5.  The applicant's liaison also states that, while no direct evidence can
be gathered to support any allegations in support of a Whistleblower
violation, the coincidence that her Congressional correspondence was being
handled by the same individual who imposed the Article 15 has to be pointed
out.  He also stated that the timing of the Article 15 in relation to the
applicant's expiration term of service (ETS) has to be considered.  He
states that maybe the unit wanted to impose extra duty and restriction but
that would have impeded her ability to outprocess.  He states that the
applicant wished to appeal the Article 15 and provided a list of witnesses
she wanted to appear on her behalf.  However, when she went to the appeal,
she was not allowed to present those witnesses.  The appellate authority
spoke only with her commander and then made his decision.

6.  The applicant provides the Article 15; a Punishment Worksheet; a DA
Form 268 (Report to Suspend Favorable Personnel Actions (FLAG); a DA Form
4856 (Developmental Counseling Form); a DA Form 1594 (Daily Staff Journal
or Duty Officer's Log); a letter dated 9 July 2002 from Lieutenant Colonel
M___ to the Division Support Command (DISCOM) commander reference the
applicant's Congressional correspondence; an undated statement from the
applicant; a company sign in and out roster; and a 22 July 2002 memorandum,
Subject:  Request for Witness/Evidence, Article 15 Proceeding.

7.  The applicant also provides a Noncommissioned Officer Evaluation Report
(NCOER) for the period ending November 2001; a DA Form 638 (Recommendation
for Award) dated 6 December 2001 approving award of the Army Commendation
Medal with First Oak Leaf Cluster; a DA Form 638 dated  19 August 2001
approving award of the Army Achievement Medal with First Oak
Leaf Cluster; Good Conduct Medal Orders; a Certificate of Achievement; a DA
Form 705 (Army Physical Fitness Test Scorecard); three Certificates of
Training; and a June 2001 evaluation of Arms Room Security (apparently the
applicant's responsibility).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records are not available to the Board.  This
case is being considered using reconstructed records, which primarily
consist of the documents provided by the applicant plus her DD Form 214
(Certificate of Release or Discharge from Active Duty), her separation
orders, her DA Form 2-1 (Personnel Qualification Record), and her Enlisted
Record Brief.

2.  The applicant enlisted in the Regular Army on 2 September 1998.  She
completed basic training and advanced individual training and was awarded
military occupational specialty 91W (Health Care Specialist).

3.  The applicant was assigned to Company C, 2d Forward Support Battalion,
  2d Infantry Division, Korea on 12 June 2001.  She was promoted to
Sergeant on 1 July 2001.

4.  On 7 July 2002, the applicant was counseled by Staff Sergeant (SSG)
M___ regarding her failure to report for CQ duty.  SSG M___ stated he
informed the applicant on 5 July 2002 that she was to perform CQ duty on 7
July 2002.  He would reschedule her 8 July 2002 ACAP appointment.  He
stated that on 5 July 2002 Second Lieutenant (2LT) A___ informed him that
he had talked to the commander in reference to her situation and there was
some discussion if someone from another platoon could pull the duty but
that she was still expected to pull the duty.  SSG M___ stated that he
talked to the commander and he (the commander) said he never told the
applicant that she did not have to pull CQ.  He said 2LT A___ confirmed
that he (2LT A___) never told the applicant that she did not have to pull
CQ.  The applicant disagreed with the comments made by SSG M___, stating,
"The commander told me to tell 2LT A___ to find someone for the duty if he
didn't have someone to get with 2LT J___.

5.  By letter dated 9 July 2002, the applicant's battalion commander,
Lieutenant Colonel (LTC) M___, responded to an inquiry dated 5 July 2002
from the Division Support Command.  LTC M___ stated that he had no current
reason to believe the applicant would miss her flight date of 28 July 2002
and that her chain of command had been very supportive in assisting her
throughout her clearing process.  Since completing the brigade field
exercise on 16 June 2002, the applicant had been given virtually
unencumbered time to outprocess.  Her participation in company operations
had been minimal and she had made great progress in completing all tasks
associated with clearing.  She was currently being considered for
disciplinary action but any action taken was not expected to affect her
flight date.

6.  On 22 July 2002, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for failing to go to her
appointed place of duty, to wit: CQ duty; for willfully disobeying a lawful
command from 2LT A___ to report to CQ duty; for willfully disobeying a
lawful order from SSG M___ to get into battle dress uniform and report to
CQ duty; for willfully disobeying a lawful order from SSG M___ to report to
him immediately; for being disrespectful in language toward SSG M___ (two
specifications); by treating SSG M___ with contempt by hanging up on him;
and by making an official statement to SSG M___, with intent to deceive, to
wit:  "The commander said I don't have to pull CQ, he told LT Andreas to
get someone from treatment platoon," which statement was totally false and
was then known by her to be false.

7.  The punishment, a reduction to pay grade E-4, was imposed by LTC M___.
He could have, in addition to the reduction, imposed a forfeiture of one-
half month's pay for 2 months, extra duty for 45 days, and restriction for
45 days.

8.  The applicant indicated that she desired to appeal the Article 15, to
submit additional matters, and to have four witnesses testify.  The appeal
was apparently denied.  Her flag was lifted on 26 July 2002.  She
apparently departed Korea on 28 July 2002.  She was honorably released from
active duty on          20 August 2002, in pay grade E-4, after completing
3 years, 11 months and      19 days of creditable active service.  It
appears she was transferred to a troop program unit (TPU) in the U. S. Army
Reserve.  Her application to the Board indicates she has since been
promoted to Sergeant and is on active duty (as of 29 January 2004).

9.  Army Regulation 27-10 prescribes policies and procedures pertaining to
the administration of military justice.  Chapter 3 states that a commander
will personally exercise discretion in the non-judicial process by
evaluating the case to determine whether proceedings under Article 15
should be initiated; determining whether the soldier committed the
offense(s) where Article 15 proceedings are initiated and the soldier does
not demand trial by court-martial; and determining the amount and nature of
any punishment if punishment is appropriate.

10.  Department of Defense (DOD) Directive Number 7050.6 covers the
Military Whistleblower Protection provisions of Title 10, U. S. Code,
section 1034.  The directive indicates that it is DOD policy that no person
shall restrict a member of the Armed Forces from lawfully communicating
with a Member of Congress, an IG, or a member of a DOD audit, inspection,
investigation or law enforcement organization; that members of the Armed
Forces shall be free from reprisal for making or preparing to make lawful
communications to a Member of Congress, an IG, or a member of a DOD audit,
inspection, investigation, or law enforcement organization; and that no
employee or member of the Armed Forces may take or threaten to take an
unfavorable personnel action, or withhold or threaten to withhold a
favorable personnel action, in reprisal against any member of the Armed
Forces for making or preparing a lawful communication to a Member of
Congress, an IG, or a member of a DOD audit, inspection, investigation, or
law enforcement organization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions, and the contentions of her paralegal
liaison, have been carefully considered.  However, she provides no evidence
to corroborate those contentions other than her own statement.  She
provides no statement from the four witnesses (presumably witnesses who
would have testified to the truth of her version of the events) she had
planned on having testify at her Article 15 appeal.  She provides no
statement from her company commander, whom she contends was the officer who
told her to tell 2LT A___ to find someone to pull her CQ duty for her.  It
appears she did not file a Whistleblower complaint with the DAIG or any
other agency.

2.  It is acknowledged that the applicant's battalion commander responded
to an inquiry (presumably initiated by a Congressional inquiry) four days
after the events leading to the applicant's Article 15.  However, the
contention that the unit may have wanted to impose extra duty and
restriction but felt such a punishment would have impeded her ability to
outprocess is unconvincing.  If the unit (i.e., the battalion commander)
had wanted to impose a token punishment that would not have impeded her
separation, he could have imposed an abbreviated forfeiture of pay.

3.  In the absence of evidence that the applicant actually filed a
Whistleblower complaint with any agency, and that agency found the
complaint had merit, or other corroborating evidence, it is presumed the
battalion commander used his best judgment in imposing a punishment to fit
the misconduct of an NCO.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fne___  __lds___  __rtd___  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.




            __Fred N. Eichorn
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004104010                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041014                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |126.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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