RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20060009087


      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. James E. Vick                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Donald L. Lewy                |     |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 reconsideration of her earlier request that her
rank of Specialist (SPC), E-4 be restored and that she be paid all due back
pay and allowances.

2.  The applicant states she was involved in a motor vehicle accident on 10
June 2003.  She was reduced in rank on 5 July 2003 for not following an
order, which was in fact incorrect.  She was subsequently diagnosed with a
traumatic brain injury [as a result of the motor vehicle accident] and is
not expected to fully recover.

3.  In a fact sheet dated 5 December 2005, a Soldier Family Management
Specialist from the U. S. Army Human Resources Command (USAHRC) states that
the applicant was injured in a motor vehicle accident on 10 June 2003 when
the truck in which she was a passenger was hit by another vehicle.  The
applicant hit her head on the windshield, and she did not receive timely
medical attention.  On 5 July 2003, the applicant was given a counseling
statement for failing to obey a lawful order.  She was to be reduced one
rank and to have         5 days of extra duty.  In August 2003, the
applicant was evacuated to the States. She spent about 12 months receiving
treatment at Brooke Army Medical Center and from there was transferred to
Fort Bliss, TX.  She was released from active duty in November 2003 and
returned to her Army National Guard (ARNG) unit prior to receiving a full
and comprehensive evaluation of her injuries.

4.  The Soldier Family Management Specialist went on to state that the
applicant was transferred to the Individual Ready Reserve after
difficulties surfaced with her ARNG unit.  She was subsequently transferred
back to the ARNG and began to have performance problems.  She was
discharged from the ARNG in September 2004.  The applicant’s behavior and
condition deteriorated.  She was finally seen by a physician at Fort
Huachuca, AZ who diagnosed her injuries as being in the line of duty and
directly attributing to her declining physical, mental, and emotional well-
being.  She was referred to a Department of Veterans Affairs (VA)
Polytrauma unit and admitted with a traumatic brain injury in May 2005.
Two physicians have documented that the applicant’s behavior and inability
to understand and follow commands were directly related to the injuries she
suffered in June 2003.

5.  The applicant provides a USAHRC, Office of the Inspector General (IG)
letter dated 21 February 2006; an email from USAHRC dated 14 February 2006;
a     21 November 2005 letter from the VA, Palo Alto Health Care System
with an attached Progress Note dated 10 September 2005; a memorandum for
record, dated 9 May 2005, from a physician at Raymond W. Bliss Army Health
Center, Fort Huachuca, AZ; a 2 August 2003 letter from the 377th Theater
Support Command IG; a DA Form 4856 (Developmental Counseling Form) dated 5
July 2003; and a DA Form 4187 (Personnel Action) dated 5 July 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in Operation Iraqi Freedom.

2.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20040003405 on 3 May 2005.

3.  The evidence provided by the applicant is new evidence which will be
considered by the Board.

4.  The applicant enlisted in the ARNG on 28 July 2000.  She was promoted
to SPC, E-4 on 7 February 2003.  On 19 April 2003, she deployed to Iraq
with her unit.

5.  On 10 June 2003, while a passenger in a military vehicle, the applicant
was involved in an accident with a civilian vehicle.  She sought treatment
with complaints of pain in her head, back, neck, shoulders, and knees.  She
returned on sick call on multiple occasions complaining of pain and was
placed on a temporary profile.  On or about 2 July 2003, she was restored
to full duty and returned to her unit.  Her commander and first sergeant
told her to turn her profile in to the administration section.

6.  On 4 July 2003, the applicant’s first sergeant inquired if she had
turned in her profile as instructed.  The applicant responded in the
negative, and she was informed again of the requirement to do so.  On the
same day, her squad leader informed her that she was required to return her
medical records to the administration section as well.  The applicant
informed her squad leader that she had mailed all of the records she
received to her home.

7.  The applicant provided a DA Form 4856 dated 5 July 2003 that indicated
the applicant’s first sergeant counseled her regarding the above.  It also
indicated the applicant was “directed to get medical paperwork on the spot.
 She brought profile document.”  The DA Form 4856 noted the applicant
“deliberately disobeyed a direct order from the commander, 1SG, and platoon
sergeant.”  The DA Form 4856 noted the commander would reduce her to the
rank of Private First Class (PFC), E-3 and she would have 5 days of extra
duty and be restricted to the company area until the 5 days of extra duty
was completed.
8.  The DA Form 4856 dated 5 July 2003 indicated the applicant disagreed
with the information on the DA Form 4856 that same date, but she did not
provide remarks.  The first sergeant then noted that administration would
initiate the paperwork for the applicant’s reduction.

9.  By DA Form 4187 dated 5 July 2003, the applicant’s commander approved
her reduction to PFC effective 5 July 2003 under the authority of National
Guard Regulation 600-200, paragraph 11-26.

10.  By letter dated 2 August 2003, in response to a request for IG
assistance, the 377th Theater Support Command IG informed the applicant
that her commander had informed the Deputy IG that he, the commander, had
intended to impose nonjudicial punishment (NJP) in lieu of the reduction
action with the intent to suspend her punishment [of reduction] and that
she would not be reduced if she did not disobey any future orders.  The IG
also informed her that she must turn over all of her medical
records/documents to her commander immediately.

11.  The applicant did not surrender her medical records to her commander
until 19 October 2003.  However, after 5 July 2003 the applicant continued
to return on sick call complaining of pain and short-term memory loss and,
on 14 August 2003, she was medically evacuated to Brooke Army Medical
Center for a neurological evaluation.  On 12 September 2003, she was
assigned to Fort Bliss, TX for follow-up treatment and further disposition.

12.  On 8 January 2004, the applicant was released from active duty due to
pregnancy.  On 12 September 2004, she was honorably discharged from the
ARNG and as a Reserve of the Army.  Her National Guard Bureau (NGB) Form 22
(Report of Separation and Record of Service) originally showed her rank and
grade as SPC, E-4 with a date of rank of 7 February 2003.  The NGB Form
  22 was later amended with an NGB Form 22A (Correction to NGB Form 22) to
show her rank and grade as PFC, E-3 with a date of rank of 18 October 2001.
 There is no evidence of record to show that either of these discharges was
voided; however, some available documentation indicates she was later
placed in a U. S. Army Reserve unit.

13.  Effective 12 August 2005, the applicant was ordered to active duty to
voluntarily participate in the Reserve Component Medical Holdover Medical
Retention Processing Program.

14.  The applicant provided a memorandum for record from a physician at
Fort Huachuca, AZ.  The letter stated that a review of the applicant’s
recent medical records demonstrated possibilities of both physical brain
injury and emotional withdrawal.  That physician noted that the applicant
needed to complete a thorough assessment of her mental and emotional
status.

15.  The applicant provided a 21 November 2005 letter from a clinical
psychologist at the VA, Palo Alto Health Care System with an attached
Progress Note.  The letter stated the applicant had not received assessment
or treatment of her traumatic brain injury for a year following her injury
[in Iraq].  Neurological testing revealed the applicant had severe problems
in verbal memory; specifically, access to retrieval information (including
personal data that was not reviewed at least weekly in her journal) and
working memory (the memory needed to handle a task).  She could not tell if
she had given an answer so she tended to be repetitive in her speech.  She
was severely slowed in her speed     of information processing and could
only handle level-1 commands with          100 percent accuracy.  She was
50 percent accurate if level-2 commands were given.  (Normal speech
includes level-3 commands).  She could no longer multi-task.  Her mental
flexibility was severely impaired.

16.  The clinical psychologist noted that none of the effects observed in
the applicant were the result of malingering.  All were due to neurological
impairment secondary to the motor vehicle accident she suffered in Iraq.
He noted the applicant had displayed the common symptoms of traumatic brain
injury [regarding the incidents that led to her reduction], not
insubordination.

17.  By letter dated 21 February 2006, the USAHRC IG informed the applicant
they identified several shortcomings with the processing of her Article 15,
Record of Nonjudicial Punishment.  The IG noted the company commander’s
request for reduction was submitted on a DA Form 4187, which was “not the
proper form to record and adjudicate non-judicial punishment under Article
15, Uniform Code of Military Justice (UCMJ).”  The IG noted the applicant
was not read her rights under the provisions of Article 31, UCMJ.  The IG
noted the applicant was counseled on 5 July 2003 and the request for
reduction was initiated on 5 July 2003 (and also noted the applicant
produced the requested document on the spot on 5 July 2003, therefore
complying with the commander’s order to provide the document).

18.  The USAHRC IG further noted that the company commander stated he
suspended all of the punishment on 2 August 2003 and reported that
information to the 377th Theater Support Command IG during their inquiry.
The USAHRC IG noted that it was still the intent of the company commander
to suspend the Article 15 punishment, meaning she should not have been
reduced (according to interviews with the commander).  The USAHRC IG also
noted that the applicant was attached to the Medical Hold Company at Fort
Bliss, TX on 12 August 2003; therefore, she had no obligation to turn in
her medical records to the company commander [in Iraq].

19.  Page 4 of the USAHRC IG report had cited an IG report dated 2 August
2003 (apparently the 377th Theater Support Command IG report) and indicated
it stated, “I spoke with CPT C___ A___ today and he stated that instead of
reducing you in rank, he has decided to give you an Article 15.  He further
stated that he would suspend the Article 15, which means that you will not
be reduced in rank as long as you do not disobey any future orders.
However, if you do receive another counseling statement for a separate
action, then your command can reinstate the punishment selected under the
Article 15, to include a reduction in rank.”

20.  Page 7 of the USAHRC IG report indicated they contacted CPT A___ on
   8 February 2006 regarding the record of the Article 15.  The report
stated, “CPT A___ alleged that NG Units were allowed to use provisions of
NG[R] 600-200 for promotions and reductions.  CPT A___ had no knowledge of
completing DA Form 2627, Record of Proceedings of Article 15.  CPT A___
also could not       re-call whether he read (the applicant) her rights.
CPT A___ could not recall whether (the applicant) was allowed 48 hours to
decide to accept non-judicial punishment or request Court Martial.  CPT
A___ was submitting a memo stating he suspended the AR15 (sic) and did not
want to discuss the case any further.”  (That memo from CPT A___ is not
available.)

21.  National Guard Regulation 600-200 (Enlisted Personnel Management),
chapter 11 of the version dated 1 March 1997, prescribed policy and
procedures for advancement, promotions, lateral appointment, reduction, and
restoration for all Army National Guard of the United States enlisted
Soldiers.  Paragraph 11-2 stated that a commander below the rank of
Lieutenant Colonel was the authority for advancement to Private, E-2
through SPC, E-4.  Paragraph 11-26 provided the eligibility criteria and
procedures for advancement to SPC.  Section XII (Reductions in Grade),
paragraphs 11-54 through 11-67, provided the policy and procedures for
reductions in grade.

22.  National Guard Regulation 600-200, paragraph 11-54 of the version
dated   1 March 1997, stated a commander who was authorized to promote to
the grade held by an individual could reduce an individual one grade for
one or more acts of misconduct.  Paragraph 11-61c(1) stated that, if
appropriate, Article 15, UCMJ, or provisions of State law could be used to
effect reductions for misconduct in lieu of this regulation.  Paragraph 11-
61c(2) stated administrative reductions for misconduct could be based on
one or more acts of misconduct.

23.  National Guard Regulation 600-200, paragraph 11-62a of the version
dated 1 March 1997, stated the commander reducing the Soldier informed the
Soldier in writing of the action contemplated and reasons.  The Soldier
acknowledged receipt of the memorandum in writing and could submit any
pertinent matters in rebuttal.  Paragraph 11-62b stated Soldiers Sergeant,
E-5 and above must have received written instructions advising them of
their right to request a reduction board.  SPC and below could be reduced
without action by a board.

24.  On 1 February 2005, chapter 11 of National Guard Regulation 600-200
was revised as a stand-alone chapter 7 to prescribe policies, procedures,
and systems to advance, promote, laterally appoint, reduce, and restore all
ARNG and Army National Guard of the United States enlisted Soldiers.

25.  Paragraph 7-68 of the stand-alone chapter 7 states the commander
taking reduction action informs the Soldier in writing of the action
contemplated and reasons.  A sample memorandum is provided.  Paragraph 4 of
the sample memorandum states the Soldier has the right to consult with
counsel and/or civilian counsel at no expense to the Government within 30
days of receiving the notice.  Paragraph 9 states the Soldier is to execute
an attached acknowledgment and return it within 30 days from the date of
receipt of the memorandum.

26.  Army Regulation 27-10 prescribes policies and procedures pertaining to
the administration of military justice.  In pertinent part, that, for
Soldiers SPC or Corporal and below (prior to punishment), the original
Record of Proceedings under Article 15, UCMJ (DA Form 2627) will be filed
locally in unit nonjudicial punishment files.  Such locally filed originals
will be destroyed at the end of         2 years from the date of imposition
of punishment or on the Soldier’s transfer to another general court-martial
convening authority, whichever occurs first.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was involved in a vehicle accident on
     10 June 2003 wherein she hit her head.  She sought treatment for
various symptoms, including headaches, but did not receive a thorough
neuropsychological evaluation for over a year.

2.  On or about 4 July 2003, the applicant responded negatively to an
inquiry from her first sergeant as to whether she had turned in her profile
as instructed.  She was informed again of the requirement to do so.  On
that day, her squad leader also informed her that she was required to
return her medical records; however, she had mailed all of the records she
received to her home.
3.  On 5 July 2003, the applicant was given a DA Form 4856 indicating her
first sergeant counseled her regarding the above.  The DA Form 4856 noted
the applicant deliberately disobeyed a direct order from the commander, 1SG
and platoon sergeant.  Since the DA Form 4856 also indicated the applicant
was directed to get medical paperwork on the spot and that she brought [a]
“profile document,” it is presumed the “deliberately disobeyed” referred to
the initial instructions to turn in her profile and medical records.

4.  The DA Form 4856 noted the commander would reduce the applicant to the
rank of PFC, E-3, and she would have 5 days of extra duty and be restricted
to the company area until the 5 days of extra duty was completed.

5.  Page 7 of the USAHRC IG report stated, “CPT A___ alleged that NG Units
were allowed to use provisions of NG[R] 600-200 for promotions and
reductions.” CPT A___ was correct in this statement.  He had the authority
to administratively reduce the applicant without using Article 15
procedures (i.e. reading the applicant her rights and allowing her 48 hours
to decide to accept non-judicial punishment or request court martial).  The
fact the applicant was reduced by administrative means, rather than through
the Article 15 process, tends to be confirmed by the fact her date of rank
on her NGB Form 22 was amended to read 18 October 2001.  Had she been
reduced by Article 15, her date of rank would have been the date the
reduction was imposed.

6.  In accordance with the National Guard Regulation 600-200 in effect at
the time, the applicant basically had no rights concerning an
administrative reduction. Per that regulation, the commander informed her
in writing of the contemplated reduction action and the reasons (via the DA
Form 4856).  The applicant acknowledged receipt of the notification by
signing the DA Form 4856.  She indicated she disagreed with the information
on the DA Form 4856, but she did not provide remarks.  Based upon the
regulatory guidance in effect at the time, her administrative reduction,
even though accomplished on the same day she was given the counseling form,
does not appear to have been legally insufficient.

7.  The National Guard Bureau appears to have recognized that the
regulatory guidance under which the applicant was reduced was inherently
inequitable since it did not even give a SPC or below a reasonable time to
respond to a contemplated reduction action.  Currently, even though a SPC
or below still is not authorized a reduction board, a SPC or below may now
take up to 30 days to respond to the reduction notification.

8.  There is, however, confusion as to just what procedures the applicant’s
commander really did use to reduce her.

9.  USAHRC IG’s 21 February 2006 letter noted that the applicant’s company
commander stated he suspended all of the punishment on 2 August 2003 and
reported that information to the 377th Theater Support Command IG.  In the
letter, the USAHRC IG noted that it was still the intent of the company
commander to suspend the Article 15 punishment.

10.  The USAHRC IG report itself indicated CPT A___ stated that ARNG units
were allowed to use provisions of National Guard Regulation 600-200 for
promotions and reductions and that he had no knowledge of completing a
Record of Proceedings under Article 15.  However, it appears he then went
on to tell the USAHRC IG that he “was submitting a memo stating he
suspended the AR15.”

11.  The USAHRC IG report also cited an IG report dated 2 August 2003 and
indicated that the 2003 IG report stated, “I spoke with CPT Chad A___ today
and he stated that instead of reducing you in rank, he has decided to give
you an Article 15.  He further stated that he would suspend the Article 15,
which means that you will not be reduced in rank as long as you do not
disobey any future orders.” As this earlier IG report was contemporaneous
with the reduction action, it is reasonable to presume the company
commander did initiate an Article 15 (possibly because the extra duty and
restriction could not have been administratively directed).  Since the
applicant was a Specialist, the Article 15 would have been filed in local
files and destroyed after 2 years or sooner, once she transferred out of
that general court-martial convening authority’s jurisdiction.

11.  Taking the information in the 2 August 2003 377th Theater Support
Command IG’s report at face value (and which was confirmed by their letter
to the applicant dated 2 August 2003), however, means that the applicant’s
reduction effective 5 July 2003 was not intended by her commander to be the
final action.  In addition, there is no evidence to show that a reduction
action was taken after 2 August 2003.

12.  More importantly, however, the applicant was subsequently diagnosed
with a traumatic brain injury as a result of the motor vehicle accident.
The injury resulted in the applicant having severe problems in verbal
memory and working memory.  She was found to be severely slowed in her
speed of information processing.  The clinical psychologist who evaluated
her noted that none of the effects observed in the applicant were the
result of malingering.  All were due to neurological impairment secondary
to the motor vehicle accident and she had displayed the common symptoms of
traumatic brain injury [regarding the incidents that led to her reduction],
not insubordination.  This new information clearly shows that letting the
applicant’s reduction stand would be an inequity.

BOARD VOTE:

__jev___  __bje___  __dll___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
amendment of the ABCMR’s decision in Docket Number AR20040003405 dated 3
May 2005.  As a result, the Board recommends that the State Army National
Guard records and all Department of the Army records of the individual
concerned be corrected by revoking her 5 July 2003 reduction to Private
First Class, E-3, thereby restoring her rank of Specialist, E-4 with all
due back pay and allowances.




                                  __James E. VIck_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009087                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |133.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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