RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 May 2007
      DOCKET NUMBER:  AR20070002883


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Gerald J. Purcell             |     |Member               |

      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 to
reinstate her rank to Staff Sergeant (SSG), E-6.  As a new issue, she also
requests that her Article 15 be removed from her Official Military
Personnel File (OMPF).

2.  The applicant states the Article 15 has served its purpose and it is in
the best interest of the Army to remove it from her OMPF.  She has learned
from this experience and will not make the same mistakes again.  Her
performance following the Article 15 demonstrates her potential for
reinstatement of her rank to SSG.

3.  The applicant states that, as to the charge of misuse of a government
credit card, she honestly believed she was authorized to use the card for a
permanent change of station (PCS) move.  Although she was guilty of
violating a technical portion of the credit card policy, she did not intend
to deceive the government.  She states this “was prior to the Army
transforming from use of the government credit card for use of PCS as
official travel.”

4.  The applicant states that, in regard to the charge of failure to pay a
debt, she had previously filed for bankruptcy on 21 December 2000.  She was
instructed not to contact or consult with any creditors during those
procedures.  All debts owed were subsequently discharged, including the
debt to Bank of America.  She did not fail to pay a debt owed to Bank of
America.

5.  The applicant provides a DA Form 4187 (Personnel Action) from her
current commander and her adjutant supporting her request; a letter, dated
17 May 2003, from her supervisor; the DA Form 2627 (Record of Proceedings
under Article 15, UCMJ); an undated memorandum from her trial defense
counsel;      U. S. Bankruptcy Court, Eastern District of VA, Alexandria
Division proceedings, dated 21 December 2000; and U. S. Bankruptcy Court,
Eastern District of VA, Alexandria Division, Discharge of Debtor(s)
proceedings, dated 29 March 2001.

CONSIDERATION OF EVIDENCE:

1.  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
AR2003086047 on 24 April 2003.

2.  The applicant provided bankruptcy court proceedings, which are new
evidence that will be considered.

3.  The applicant enlisted in the Regular Army on 27 May 1987.  She was
promoted to SSG, E-6 on 1 September 1995.

4.  On 21 December 2000, the applicant filed for bankruptcy in the U. S.
Bankruptcy Court, Eastern District of VA, Alexandria Division.  Her
creditors were notified of these proceedings on 18 January 2001.

5.  On 14 February 2001, the applicant accepted nonjudicial punishment
under Article 15, Uniform Code of Military Justice (UCMJ) for being
derelict in the performance of her duties, between on or about 13 June
through 18 August 2000, in that she willfully failed to use her government
credit card for official government business; and for dishonorably failing
to pay a debt to Bank of America, in the sum of $4,186.47 for purchases,
which amount became due and payable on or about 5 January 2001.  Her
punishment was a forfeiture of $500.00 (suspended for six months) and a
reduction to Sergeant (SGT), E-5.  The Article 15 was directed to be filed
in the restricted portion of her OMPF.

6.  The applicant appealed her punishment.  Her appeal was denied on
     26 February 2001.

7.  On 29 March 2001, the U. S. Bankruptcy Court, Eastern District of VA,
Alexandria Division granted the applicant a discharge.  The applicant’s
trial defense counsel apparently sought reconsideration of her Article 15
appeal based upon these proceedings.  He noted the bankruptcy proceedings
were initiated on 21 December 2000.  If the applicant had attempted to pay
her debt to Bank of America, the Bankruptcy Court could have deemed that
payment to be a fraudulent conveyance (a conveyance at the expense of her
other creditors).

8.  The applicant’s trial defense counsel also stated that the applicant
believed she was authorized to use her government credit card for travel
expenses related to her PCS move.  Her mistake was made in good faith,
without any intent to deceive.  When she was asked about her credit card
expenses, she readily answered questions and cooperated.

9.  The applicant is apparently scheduled to retire for length of service
on 1 June 2007.

10.  The applicant’s records contain no other derogatory information.
There are no adverse comments in any of her noncommissioned officer
evaluation reports.

11.  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.

12.  Army Regulation 27-10 states, in pertinent part, that enlisted
Soldiers         (E-5 and above) and officers may petition the Department
of the Army Suitability Evaluation Board (DASEB) for transfer of records of
nonjudicial punishment from the performance to the restricted portion of
the OMPF.  To support the request, the person must submit substantive
evidence that the intended purpose of the Article 15 has been served and
that the transfer is in the best interest of the Army.

13.  The Travel and Transportation Reform Act of 1998 (Public Law 105-264)
requires that all government employees use a contractor-issued government
charge card to pay for official travel expenses unless otherwise exempt.
Current Army travel charge card program policy was established by 28
January 2003, Secretary of the Army, and 21 February 2003 Assistant
Secretary of the Army (Financial Management and Comptroller) memoranda.
Use of the travel charge card for relocation-related travel expenses in
conjunction with PCS travel is prohibited.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the Article 15 has served its purpose
and it is in the best interest of the Army to remove it from her OMPF has
been considered.  However, a finding that an Article 15 has served its
purpose would only result in its transfer from the performance portion of
the Soldier’s OMPF to the restricted portion.  The applicant’s Article 15
is already filed only on the restricted portion of her OMPF.  Removal of
the Article 15 would be justified only if it were to be determined
nonjudicial punishment should never have been imposed.

2.  As to the charge in the Article 15 that the applicant failed to pay a
just debt, the applicant appears to have a valid rebuttal to that charge.

3.  The applicant’s debt to Bank of America was due on or about 5 January
2001. However, she had filed for bankruptcy on 21 December 2000.  Bank of
America might not have known about that filing, since it appears notice was
not sent to the applicant’s creditors until 18 January 2001.  However, once
she filed bankruptcy, she could not turn any of her assets over to any
creditor.  It appears reasonable to believe that her trial defense counsel
would have brought that fact up in the    applicant’s appeal, but even if
he did not bring it up at that time he brought it up in March 2001, when
the Court discharged the applicant’s debts.  Retaining the charge that the
applicant failed to pay the debt to Bank of America, when the evidence of
her prior bankruptcy proceedings unquestionably exculpates her, appears to
be a "clear injustice."

4.  As to the charge in the Article 15 that the applicant misused a
government credit card (evidently because she used it to pay for PCS
expenses), the applicant admits to the accuracy of this charge.  The
applicant contends, however, that she honestly believed she was authorized
to use the card for a PCS move and did not intend to deceive the
government.

5.  The charge itself as specified in the Article 15 is a bit misleading.
It sounds as though the applicant was required to use the government credit
card and failed to do so.  From the applicant’s current statements and from
her trial defense counsel’s later appeal of the Article 15, it appears the
charge should have more accurately been worded that the applicant used the
government credit card in a prohibited manner.  Given the confusing wording
of this charge, and the timing, the applicant’s argument that she “honestly
believed she was authorized to use the card for a PCS move and did not
intend to deceive the government” has some credibility.

6.  The Travel and Transportation Reform Act of 1998 required that all
government employees use a contractor-issued government charge card to pay
for most official travel expenses.  The applicant improperly used her
government credit card during the summer of 2000.  Current Army travel
charge card program policy was not even established in writing until
January 2003.

7.  Any reasonable doubt should be resolved in favor of the applicant.  As
a noncommissioned officer, the applicant should have ensured she fully
understood what she could use the government credit card for.  However,
that mistake alone should not have resulted in the punishment of a
reduction in grade and a suspended forfeiture.  For what is reasonably
believed to have been an honest mistake, the punishment would have been
more fitting if the reduction had also been suspended.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__ym____  _lmd____  _gjp____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant partial amendment of the ABCMR’s decision in Docket Number
AR2003086047 dated 24 April 2003.  As a result, the Board recommends that
all Department of the Army records of the individual concerned be corrected
by:

     a.  amending her Article 15 to delete the charge of dishonorably
failing to pay a debt to Bank of America, in the sum of $4,186.47 for
purchases, which amount became due and payable on or about 5 January 2001;

     b.  amending her punishment to show a forfeiture of $500.00 (suspended
for six months) and a reduction to Sergeant, E-5 (suspended for six months)
was imposed;

     c.  showing that the punishments of a suspended forfeiture and a
suspended reduction were remitted at the end of the six-month period;

     d.  paying to the applicant all pay and allowances due as a result of
the amendment to the punishment imposed by the Article 15; and

     e.  if applicable, showing she retired in the rank of Staff Sergeant,
E-6.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
removing the Article 15 from her OMPF.




                                  __Yolanda Maldonado___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002883                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070517                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |126.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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