RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 September 2006
      DOCKET NUMBER:  AR20060005393


      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:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Ms. Alice Muellerweiss            |     |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, in effect, that her rank of Sergeant (SGT), E-5
be restored.

2.  The applicant states that she was never told that she was considered a
troublemaker.  In fact, Lieutenant Colonel (LTC) G___ mentioned to her that
she was a good Soldier.  But, while giving her the Article 15, he added
that he heard “how out of character CPT B___ approached me during our
dispute about my regards to SPC Re___ leaving.”  Furthermore, since being a
part of the 711th Signal Battalion, she was never asked how her family was
or if she needed anything.

3.  The applicant states that, overall, the lower enlisted [personnel] were
not of concern to the battalion.  If anyone needed to go on emergency leave
or if living conditions were not good, someone either had to write Congress
or “call Crestview FL.”  The whole State of Alabama granted promotions
based on certain criteria and groups as well as on race.  There was never
an African-American commander in A, B, C, or D Company.  After she
mentioned about the way no peers of her race had gotten any higher than
Specialist (SPC), E-4, she then started seeing things happen.

4.  The applicant states that, during the 2004 deployment, there were
several stabbings.  The first one happened at Fort Stewart, GA.  SPC Ro___
did not press charges but instead expressed his concerns concerning LTC
G___’s approach to the incident.  The battalion still deployed, leaving SPC
R___ in the hospital.

5.  The applicant states that there was never any unity in the battalion.
Captain  (CPT) B___ and CPT W___ argued in front of the S-4 section about
what they should be doing.  Redeployment was by separate companies.  As the
711th Signal Battalion was leaving, CPT B___ gave her a hug and said they
had their differences but they worked them out.  The applicant states that
she smiled and returned the hug.  CPT B___ is now relieved of duty and CPT
W___ lost his commission and is now an E-5.

6.  The applicant states that she lost her military identification card in
mid-March and went through her chain of command.  She thought getting her
identification card was not [a unit] priority, so six months later she got
it herself.  Then she got a counseling statement for not going through the
S-1.  It was said that she was not enforcing the standards.

7.  The applicant states that CPT B___, CPT H___, First Sergeant (1SG)
G___. Sergeant First Class (SFC) H___, Command Sergeant Major (CSM) G___,
and the executive officer are all the same race and there is no balance in
the 711th Signal Battalion.  Major C___ (the executive officer), LTC M___
(the battalion commander), and CSM R___ are all the same race and there is
no balance in the 1st Battalion, 203d Air Defense Artillery (Patriot).

8.  The applicant provides an undated letter from First Lieutenant F___,
the company commander; a DA Form 4187 (Personnel Action) dated 19 December
2005; two copies of a DA Form 368 (Request for Conditional Release), signed
by the applicant on 6 December 2005; an undated letter to the Jeff S___
from Senator Bill N___’s office; a 5 October 2004 letter from the Adjutant
General, Coalition Forces Land Component Command, U. S Army Forces Central
Command to Senator Bill N___; unit transfer orders dated 18 December 2003;
active duty orders dated 23 December 2003; release from active duty orders
dated 28 January 2005; a 10 August 2005 letter from The Adjutant General,
Joint Force Headquarters, Alabama National Guard to Senator Bill N___; a 22
June 2005 letter to Jeff S___; and a 1 September 2005 letter from the
Office of the Inspector General, Joint Force Headquarters, Alabama National
Guard.

9.  The applicant also provides a DD Form 214 (Certificate of Release or
Discharge from Active Duty) for the period ending 23 October 1997;
separation orders dated 25 July 1997; a DD Form 214 for the period ending
19 February 2005; an enlistment contract dated 24 February 2003; DA Forms
4856 (General Counseling) dated 9 February 2004, 20 May 2004, 22 June 2004,
and 26 June 2004; two DA Forms 2823 (Sworn Statement), one dated 14 June
2004 and one dated 29 May 2004; a 21 August 2004 letter to Jeff S___; a
Field Grade Article 15 Punishment Worksheet; an Article 15 dated 21 June
2004; and a sheet entitled, “EXTRA DUTIES FOR PFC R___.”

CONSIDERATION OF EVIDENCE:

1.  The applicant served in Operation Iraqi Freedom.

2.  The applicant enlisted in the Regular Army on 2 October 1989 and was
honorably discharged, in the rank of SGT, E-5, on 23 October 1997, upon the
completion of her required active service, after completing 8 years and 22
days of creditable active service.  She enlisted in the Army National Guard
(ARNG) on 13 November 1997 for 1 year and was honorably separated on 12
November 1998 in the rank of SGT, E-5.

3.  On 22 February 2003, the applicant enlisted in the ARNG, in pay grade E-
4, for 1 year.  Her DD Form 1966 (Record of Military Processing – Armed
Forces of the United States), item 18f, showed her accession pay grade as E-
4.  Item 32 (Specific Option/Program Enlisted for, Military Skill, or
Assignment to a Geographical Area Guarantees), subitem 32a (Specific
Option/Program Enlisted for), showed she enlisted for assignment to Battery
C, 1st Battalion, 203d Air Defense Artillery, Hartselle, AL; for 1 year; in
military occupational specialty 92Y1/92A.

4.  In item 32 (Certification of Recruiter or Acceptor) of the applicant’s
DD Form 1966, her recruiter certified that he had not made any promises or
guarantees other than those listed in item 32a.  Section VI (Remarks) of
the DD Form 1966 showed she was enlisted in pay grade E-4.

5.  Orders dated 18 December 2003 transferred the applicant from Battery C,
1st Battalion, 203d Air Defense Artillery to Headquarters and Headquarters
Company, 711th Signal Battalion effective 15 December 2003.  Orders dated
  23 December 2003 ordered the applicant’s unit to active duty.

6.  The applicant entered active duty on 3 January 2004.

7.  A DA Form 4856 dated 9 February 2004 shows the applicant was counseled
for failing to provide a contact number and for failing to report to duty
at the given time.

8.  The applicant’s unit arrived in Kuwait/Iraq on 14 February 2004.

9.  A DA Form 4856 dated 20 May 2004 shows the applicant was counseled for
refusing an order not to have contact with another Soldier and for
disrespecting a commissioned officer.

10.  On 21 June 2004, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) from her
battalion commander for two specifications of disobeying a lawful command
from her superior commissioned officer; for behaving with disrespect toward
her superior commissioned officer by contemptuously turning from and
leaving him while he was talking to her; and for disobeying a lawful order
from her superior commissioned officer and noncommissioned officer.

11.  As a field grade Article 15, and since the applicant was a SPC, E-4,
the applicant’s battalion commander could have imposed as punishment a
reduction of one or more grades.  (Had the applicant been a SGT, E-5, only
a one-grade reduction could have been imposed.)  The battalion commander
imposed as punishment a reduction to Private First Class, E-3; a reduction
to Private, E-2 (suspended for 180 days); extra duty for 45 days, and
restriction for 45 days.  The applicant appealed but did not submit
additional matters.  On 22 June 2004, her appeal was denied.

12.  A DA Form 4856 dated 22 June 2004 shows the applicant was counseled
for wearing the wrong rank (i.e., the rank of a SPC).  The DA Form 4856
indicated that SFC D___ had told her it would be OK to take the rank of SPC
off after her shift.

13.  In an undated letter to Jeff S___, the applicant stated, in part, that
SPC R___ returned to Babylon and she and several other Soldiers had lunch
with SPC R___.  Very shortly afterwards, her 1SG and company commander
informed her that SPC R___ would be leaving for Baghdad for a scheduled
appointment and she could be the problem.  She stated,

      “So they told me to leave…I was told I am being ordered to not see
      him, and they knew I had lunch with SPC R___.  The next day I felt
      compelled to see him leave…I was going to help him with his
      belongings, but the 1st Sergeant said leave…I said okay 1st Sergeant
      let me see him at least before he left.  The Commander walked up on me
      pointing outward saying leave. I said to him politely, Sir I’m alright
      I just want to help him with his things and see him leave.  He said it
      again causing a scene and acting belligerent…The Commander told me to
      come inside.  I said, I will talk to you later, Sir.  He called for me
      to come inside.  I said I will talk to you later, Sir and so then I
      walked away…”

14.  In a letter dated 5 October 2004 from the Adjutant General, Coalition
Forces Land Component Command, U. S Army Forces Central Command to Senator
Bill N___, the Adjutant General informed Senator N___, in part, that
promotions were based solely on a Soldier’s merit and not race.  There were
two CPTs, one lieutenant, one SFC, one Staff Sergeant, and six SGTs of
African-American descent in Headquarters and Headquarters Company, 711th
Signal Battalion, a company of 80 Soldiers.  Two of those senior enlisted
Soldiers worked in the supply section with the applicant.  Senator N___ was
informed that the applicant was administered NJP for disobeying a direct
order from her company commander, which was a “completely reasonable,
ethical, morale (sic), and lawful order issued by her Company Commander in
a combat zone.”  She had been counseled for other acts of misconduct.  The
Adjutant General stated that the punishment imposed was fairly severe due
to the applicant’s lack of respect for authority and attitude in regards to
following lawful orders in a combat zone and her continuous disrespectful
attitude during the [NJP] proceedings.

15.  On 19 February 2005, the applicant was released from active duty.  Her
   DD Form 214 for the period ending 19 February 2005 erroneously shows her
rank and grade as SPC, E-4 with a date of rank of 24 February 2003.

16.  In a 22 June 2005 letter to Senator Bill N___’s office, the applicant
stated, in part, “My enlisting did involve me to take a Specialist slot.”

17.  In a letter dated 1 September 2005 from the Office of the Inspector
General, Joint Force Headquarters, Alabama National Guard, to Senator Bill
N___, the Acting Inspector General informed Senator N___ that he conducted
a thorough inquiry into the applicant’s situation and concluded that all
avenues of redress had been provided to her and that she received due
process from both the U. S. Army and the Alabama National Guard.  He
regretted that disciplinary action had to be taken but, according to
testimony and sworn statements gathered in a combat zone, she did disobey a
lawful order.

18.  On 6 December 2005, the applicant requested conditional release from
the ARNG to enlist in the Regular Army.  Her command recommended approval.
Her company commander noted that the applicant had an extremely difficult
time since returning from the Middle East in finding employment to support
herself and her son.  Her return to the Active Army would fill that void
along with giving the Army one more experienced veteran.

19.  In the processing of this case, an advisory opinion was obtained from
the Chief, Recruiting Policy Branch, Office of the Deputy Chief of Staff, G-
1.  That individual opined, after a review of the applicant’s case, that
the applicant did not clearly understand the ARNG’s reduction in grade
policy in relation to being reduced from SGT to SPC in order to be assigned
to an ARNG unit.  If she had been allowed to enter a unit as a SGT and was
subsequently administered UCMJ that resulted in a reduction in rank by one
grade, she would be an E-4.  At pay grade E-4, she would be eligible to
reenter the Regular Army, as an exception to policy.  Further, considering
that the applicant is a prior service sole parent Soldier who has a valid
Family Care Plan that was used during her tour in Operation Iraqi Freedom,
consideration for an exception in this area could also be appropriate.  The
advisory opinion recommended the applicant’s rank be restored to grade E-4,
with an effective date and date of rank of 22 June 2004, which coincides
with the date she was reduced by her commander.

20.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  On 13 September 2006, she concurred with the advisory
opinion.  She noted that her accomplishments included completion of the
Primary Leadership Development Course, a top secret security clearance, 18
months service in Korea, 12 months service in Iraq, and raising a good 14-
year old child.
21.  The applicant stated that, when she initially entered the Alabama
ARNG, she was experiencing hardship.  Under the circumstances, she accepted
the lesser grade.  She was not clear about accepting the lesser grade or
whether she would obtain her highest grade in order to reenter the Regular
Army.  She provided a DD Form 368 signed by her on 14 June 2006; a DA Form
4187 dated 13 June 2006; and a DA Form 3355 (Promotion Point Worksheet)
dated 26 November 1996.

22.  National Guard Regulation 600-200 (Enlisted Personnel Management),
chapter 2 (ARNG Enlistment Program), states all enlistments will be made
against position vacancies.

DISCUSSION AND CONCLUSIONS:

1.  The applicant appears to contend that her NJP under Article 15 of the
UCMJ was unfair because of racial bias in her unit (and in the entire
Alabama ARNG).  She stated that CPTs B___ and H___, 1SG G___, SFC H___,
CSMs G___ and R___, and several other high ranking Soldiers in her unit
were “all the same race” (presumably meaning they were Caucasian).  The 5
October 2004 letter from the Adjutant General, Coalition Forces Land
Component Command, U. S Army Forces Central Command to Senator Bill N__
disputed her contention, and she provided no evidence to refute the
information contained in the 5 October 2004 letter.

2.  The applicant provided no evidence, such as findings by the National
Guard Bureau, Office of the Inspector General; or by the Department of the
Army or Department of Defense, Office of the Inspector General; or by any
other military investigative agency that her unit or the Alabama ARNG had
the type of racial climate the applicant described.  She provided no
evidence to show that the NJP under Article 15 of the UCMJ for her
misconduct was imposed solely, or disproportionately, as a result of a
biased racial climate in her unit.

3.  The applicant was an experienced Soldier assigned to a combat zone.  In
her undated letter to Jeff S___, she acknowledged she disobeyed her
commander and showed disrespect to her commander by saying she would talk
to him later and walking away.  Her battalion commander could have
immediately reduced the applicant from SPC, E-4 to Private, E-2.  He
elected instead to impose a  two-grade reduction but to suspend execution
of the reduction to Private, E-2.

4.  The recommendation of the advisory opinion and the applicant’s response
to the advisory opinion have been carefully considered.  However, there is
no evidence to show that the applicant did not understand the ARNG’s
reduction in grade policy in relation to being reduced from SGT to SPC in
order to be assigned to an ARNG unit.  Her DD Form 1966 showed she enlisted
for 1 year, for assignment to a specific unit, and for assignment in a
specific military occupational specialty.  Her recruiter certified that she
was made no other promises.  The applicant nevertheless signed her
enlistment contract showing she enlisted in pay grade E-4.  If the
applicant had believed she was to be promoted to or reinstated in pay grade
E-5 at some point after her enlistment, and she was not, she could have
requested separation based upon an erroneous or unfulfilled enlistment
contract.  There is no evidence to show that she did so.

5.  Since there is insufficient evidence to show the applicant was
erroneously or unjustly enlisted in the ARNG in pay grade E-4 instead of
pay grade E-5, or that the applicant “was not clear about accepting the
lesser grade,” the relief recommended by the advisory opinion is not
warranted.

6.  Regrettably, there is insufficient evidence to warrant the relief
requested by the applicant.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds___  __pms___  __am____  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.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005393                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060928                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |112.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]