RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	

	BOARD DATE:	  20 February 2008
	DOCKET NUMBER:  AR20070003888


	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.


Ms. Catherine C. Mitrano

Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. Patrick H. McGann, Jr.  

Chairperson

Ms. Eloise C. Prendergast 

Member

Mr. Michael J. Flynn

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 the Record of Proceedings under Article 15, UCMJ (DA Form 2627), imposed against her as a result of a claims adjudication process be overturned and removed from her Official Military Personnel File (OMPF) because it was unjustified and unwarranted.  The applicant also requests that she be returned to active duty, that her rank be restored and that she be determined eligible for promotion opportunities.

2.  The applicant states, in effect, that she was unjustly administered an Article 15, dated 16 December 1997, that was the sole result of the claims adjudication process.  She also states that up until now she did not have the mental capacity to pursue this administrative process.

3.  The applicant provides a 14 page narrative summary of her military background; household goods claims; Article 15, dated 16 December 1997, and appeal; Administrative Board hearing, dated 5 January 1998, appeal and witness statements/affidavits; separation documents; excerpts from Army Regulation 
27-20 (Legal Service Claims); Department of the Army Pamphlet 27-162 (Legal Services Claims Procedures); a letter from her psychologist, dated 23 October 2006; and three witness statements and one affidavit provided during her Article 15 proceedings.  These documents were submitted in a black binder and separated into 17 Exhibits and Appendixes I through V.

CONSIDERATION OF EVIDENCE: 

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military record shows that she enlisted in the Regular Army on 17 September 1990.  She was trained in, awarded, and served in military occupational specialty (MOS) 71M (Chaplain Assistant).  

3.  On 27 August 1992, the applicant was honorably discharged for the purpose of immediate reenlistment.  On 28 August 1992, the applicant reenlisted in the Regular Army and served during the periods 28 August 1992 through 26 August 1996; and 27 August 1996 through 12 August 1998.  

4.  The applicant's record shows she received the Army Achievement Medal, the Army Good Conduct Medal, the Army Service Ribbon, and the Overseas Service Ribbon.  

5.  The applicant's record shows she was transferred to A Company at Walter Reed Medical Hospital, Washington, DC, for duty during the period 24 January 1991 through 17 March 1994.  On 18 March 1994, the applicant was assigned to the 233rd Darmstadt Babenhausen, Germany, for duty during the period 25 March 1994 through 1 October 1995.  The applicant returned from overseas and was assigned to the United States Army Garrison, Fort Polk, Louisiana on 21 March 1997.

6.  Department of the Army, Fort Polk Resident Agency 6th Military Police Group (CID), Fort Polk, Louisiana, Memorandum, dated 3 October 1997, provided an investigative summary.  The CID memorandum shows that the investigation established probable cause to believe the applicant committed the offense of fraud against the United States Government when she submitted a claim for damages of household goods, which she knew to be false.  The CID memorandum shows that a review of the applicant’s claim filing history revealed she previously received replacement cost and loss of value payments for several items listed on her 15 May 1997 claim.  

7.  The CID memorandum shows that an interview was conducted with claims examiners from the Claims Division Office of the Staff Judge Advocate, Fort Polk on 6 August 1997.  The CID memorandum shows that the applicant was cooperative and did not appear upset by their inspection of bedroom furniture resembling items previously claimed as fire damaged items.  The CID memorandum states that the applicant later admitted to painting those pieces of furniture herself.  

8.  The CID memorandum states that claims examiners reviewed the applicant's previous claims and was confident the applicant filed for damages previously claimed.  The examiner stated that normally their office would refuse to make payment on questionable claims without pursuing criminal action; however, the amount claimed and the suspected degree of fraud, in their opinion, warranted review by the CID.  

9.  The CID determined in their review of the applicant's transportation shipping documents that the documents included past and present filed damage claims.  

10.  The CID memorandum also shows that the Chief Claims Division supervisor at Fort Polk related to the CID that items for which an individual received replacement cost (RC) would become the property of the government and would be released to the installation property disposal office (PDO) for final disposition. The supervisor also stated that the items may be retained by the claimant if a PDO is not available.  However, the claimant can not file for additional damages against these items.  The supervisor continues that a claimant may file for damages for the same item, if RC have not been previously received, and the damages claimed are different from previous claims.  

11.  The supervisor stated that the claims division’s staff searched the appropriate regulations and the standard operating procedures (SOP) and did not produce a written policy forbidding persons from filing claims against items for which they received RC.  The supervisor also noted that items are normally taken from the individuals and disposed of so as not to cause future problems of this nature, but in this instance the applicant was allowed to keep the items for which she received RC.

12.  On 16 December 1997, the applicant received NJP under the provisions of Article 15 of the UCMJ, for intent to deceive, signing a false official record in that, the amount of her claim was over inflated, the purchase price and dates were fraudulent, and the extent of damage was intentionally overestimated to include claiming damage which did not exist and that the applicant knew to be false on 15 May 1997, and on 6 August 1997.  The NJP also shows the applicant on or about 11 June 1997, with intent to deceive made a false official statement to two civilian claim representatives, to wit: that she got rid of all her burned furniture, or words to that effect, knowing the statement was false.  

13.  The NJP continues that the applicant did on 15 May 1997, prepare a DD Form 1842 (Claims for Loss of or Damage to Personal Property Incident to Service) for presentation for approval or payment, make a false claim against the United States Army Claims Service through the Claims Division of the Office of the Staff Judge Advocate at Fort Polk, in the amount of $10,996.00.  Her punishment consisted of reduction to the rank of specialist/pay grade E-4, a forfeiture of $697.00 per month for two months, and 45 days of extra duty.  The applicant appealed the punishment and her appeal was denied on 24 December 1997.  The approval authority directed that the DA Form 2627 be filed in the applicant's performance fiche.
14.  On 26 February 1998, the applicant was notified by her commanding officer of pending separation action under the provisions of Army Regulation 635-200 (Personnel Separation), paragraph 14-12c, for commission of a serious offense.  She was advised of her rights.  She consulted counsel, and requested a hearing before a board of officers, and at that time she did not submit a written statement in her own behalf.    

15.  The applicant's record contains a Certificate of Psychiatric Evaluation, dated 2 March 1998, which shows she was examined by a Medical Corps psychiatrist at Bayne-Jones Army Community Hospital, Center for Mental Health Services, Fort Polk, Louisiana.  The psychiatrist determined that although the applicant had an occupational problem, there was no potential for self-harm or harm to others, and she had no significant psychiatric disease/disorder.  The applicant’s evaluation shows the applicant met the medical retention standards prescribed in Chapter 3 of Army Regulation 40-501, and did not warrant disposition through medical channels.  The evaluation form also shows the applicant was psychiatrically cleared for any action deemed appropriate by her command.  On 6 May 1998, the applicant's request for a hearing by a board of officers was approved. 

16.  On 8 May 1998, the applicant was notified that a board of officers would be convened to determine whether she should be separated for misconduct.  

17.  On 28 May 1998, the board of officers met at Headquarters, United States Army Garrison, Headquarters Command (Warrior Brigade), Fort Polk, Louisiana. The applicant's overall service record was considered by the board to determine if she should be eliminated under the provisions of Army Regulation 635-200 chapter 14 for misconduct.  The board of officers recommended the applicant be separated from the service under the provisions of Army Regulation 635-200, chapter 14, for a serious act of misconduct, not retained and receive a general, under honorable conditions discharge.  

18.  On 3 June 1998, the applicant submitted through her military defense counsel, a request for a new administration board for the following three reasons: she was denied due process because she was prevented from presenting relevant and competent evidence; she was unable to effectively voir dire the new board member; and that she did not have a board that consisted of a female minority member.  

19.  A Memorandum from the Department of the Army, Joint Readiness Training Center, Office of the Staff Judge Advocate, Fort Polk, dated 15 June 1998, found the separation action to be legally sufficient.  
20.  On 20 July 1998, a Memorandum of Opinion from the Staff Judge Advocate, Department of the Army, Headquarters, Joint Readiness Training Center, Folk Polk, Louisiana, states that the separation proceedings, the Article 15 materials in the file, and the associated claims paperwork were reviewed and found to be legally sufficient.  

21.  The Memorandum of Opinion shows that the applicant was allowed to present relevant and competent evidence.  The opinion further shows that the defense counsel called the claims examiner who reviewed the claim and also testified about the claim for the defense.   The opinion continues that the Board President did not abuse his discretion in curtailing the examination of the claims examiner after her testimony established that the claim was false.  The opinion shows that the President determined that the defense evidence was essentially cumulative and there was no requirement of law to discuss every false line.  Further, the applicant testified and refuted the falsity of the claim, but indicated that she wanted "to get out."

22.  The Memorandum of Opinion concluded, that the applicant's record did not support a finding that the defense counsel was unable to voir dire Captain B______, nor is there any evidence that defense counsel objected to the composition of the board panel.  The opinion continues that the applicant's defense counsel indicated "we are satisfied with this panel."  The opinion continued that the applicant's defense waived any objection as to the panel composition or as to any complaint about voir dire. 

23.  Department of the Army 5th Personnel Service Battalion, Fort Polk, Louisiana Orders 215-0002, dated 3 August 1998, shows that the applicant would report and be assigned to U.S. Army Transition Center, at Fort Polk, for separation on 12 August 1998.

24.  The applicant's DD Form 214, dated 12 August 1998, shows she was separated under the provisions of paragraph 14-12c, Army Regulation 635-200, for misconduct, and issued a general under honorable conditions discharge in the rank of specialist/pay grade E-4.  The DD Form 214 confirms she completed a total of 7 years, 10 months, and 26 days of creditable active military service.  Her DD Form 214 shows an RE code of RE-3 and a Separation Program Designator (SPD) code of "JKQ" which indicates involuntary separation for misconduct.

25.  The applicant provides a letter from a family psychological consultant, dated 23 October 2006.  The psychologist states that she has treated the applicant for anxiety and depression since January 2006 and post-traumatic stress disorder (PTSD) related to the events that occurred during her military service from 1995 through 1998.  The psychologist further states the applicant was hospitalized twice for psychiatric symptoms, suicidal impulses once in 1998 and again in 2000; however, these hospitalizations were not the result of any pre-existing mental disorder, but rather they were further evidence of the applicant's PTSD.  

26.  The applicant submitted a 14 page narrative summary in which she essentially states she was accused of and subsequently demoted for allegedly committing the act of fraud against the United States Army; specifically, knowingly filing a false household goods claim.  The applicant states that the accusation was untrue and submits supporting evidence to substantiate her claim. The applicant adds that the information was ignored by her commanding officer and the administrative discharge board.

27.  The applicant contends that she received a FP Form 754 (Request for Legal Action), dated 4 November 1997, which she contends is a false document since it was not signed by a commander, or an authorized individual and is therefore incorrectly documented.

28.  The applicant contends that her commanding officer did not identify what specific U.S. Code, DoD Directive, Standard of Operating Procedure (SOP), or Army Regulation (AR) she violated.  The applicant contends that by using 
AR 27-20 (Legal Services Claims) and Department of the Army Pamphlet 
27-162 (Legal Services Claims Procedures) chapter 11-4 (Claimants), she will factually prove that the claims office did not properly administer published guidance to process her claim and prevent perception of fraud by a service member.

29.  The applicant contends that the claims office automatically determined that she submitted a false claim, instead of her incorrectly filling out the claim forms; should have avoided characterizing her disagreement over the value of her losses; and not determined that her actions were overstated and intentionally misleading, dishonest and unjust.  

30.  The applicant contends that she did not commit any acts of fraud against the United States of America, as quoted in DA Pamphlet 27-162, and points out that a misunderstanding or inadvertent falsification is not fraud.  

31.  The applicant contends that the DA Pamphlet 27-162 protects claimants through the established policy that in the event that a claimant is unable to substantiate ownership, the item's value, quality, purchase price, replacement cost, extent of damage or PED, do not constitute fraud.  The applicant continues that she stood prepared, willing and did attempt to present a defense for her personal property claim, but was denied the right to do so.  

32.  The applicant also states that Chapter 11-4 (Personnel Claims and Related Recovery Actions) of DA Pamphlet 27-162, shows in general, Congress granted the right to be compensated for a loss incident to service to certain classes of people.  While the Publication for Claims Adjustments (PDA) applies to all Federal employees, Army claims offices are authorized to compensate only Soldiers on active duty, members of the U.S. Army Reserve or the Army National Guard engaged in active service or inactive duty training, civilian employees of the Army or the Army National Guard, and Department of the Defense civilian employees who are not employees of the Air Force, Navy, or Marine Corps.  Entitlement to present a claim is based on one's status at the time the claim accrued.

33.  The applicant contends that Chapter 11-10d (Evaluation, Adjudication, and Settlement of Claims) of Army Regulation 27-20 (Legal Service Claims) provides that when necessary to disapprove a claim or to allow a sum less than the amount claimed, the claimant must be informed, either orally or in writing, of the factual or legal basis for the decision.  The file must reflect that this explanation was provided to the claimant.

34.  The applicant alleges in her 14- page narrative that the potential errors which caused the unjust punishment against her are documented in her military record and also contained in a black binder that was provided in support of her application.  

35.  The applicant, in essence, alleges that on 11 February 1997, the AERO Mayflower Transit Company, packed each item and provided her with an inventory sheet, and shipped her household goods.  The AERO Mayflower Transit Company verified that the items listed as fraudulently claimed were not damaged when crated.  The Chief of Claims at Fort Polk submitted a falsified action document to the Deputy Staff Judge Advocate knowingly listing items whose numbers failed to correspond with the items listed on her Household Goods Descriptive Inventory; thereby making it impossible for a reviewing party to verify the condition of the furniture verified by AERO Mayflower at the time of crating.  The applicant continues that the accurate line item numbers for the damaged items claimed and refuted by the claims branch are noted in her binder.  
36.  The applicant alleges that on 17 November 1997, she was informed by her command they were going to recommend she receive an Article 15 solely based on the allegation of filing a false claim on information derived directly from the 
Fort Polk Claims Office.  The applicant alleges that an Article 15 was imposed for filing a false claim and that she was given the maximum punishment although there was documentation that the claims office failed to properly adjudicate her claim.

37.  The applicant alleges that as specified in Army Regulation 27-10 (Military Justice) Article 15 (Non-Judicial Punishment) it is inappropriate for cases involving minor offenses and constitutionally unjust to then subsequently initiate an administrative hearing to discharge her for a commission of a serious offense, which is usually done in a court-martial proceeding.  The applicant alleges that her record of disciplinary action throughout her eight year military career was an unjustly administered Article 15 for a fraudulent claim rendered on 16 December 1997.

38.  The applicant concludes that she had dedicated eight years to the US Army and never dreamed that a system she respected and represented would fail her. The applicant continues that she trusted her commander to have the courage and judgment to recognize the facts surrounding the allegations, but the commander failed her.  The applicant continues that she also trusted the administrative hearing process to do the right thing and it failed her.  The applicant states that she must now rely on the ABCMR to examine the facts and make what was wrong, right.  The applicant further states that the facts are clearly documented.  

39.  The applicant makes reference to three witness statements and one affidavit provided wherein the authors state that she was denied due process by not allowing her witnesses to speak on her behalf, not reviewing her documents, excluding her (furniture) as evidence brought to her administrative board hearing and mistreatment by her command. 

40.  Army Regulation 27-10 (Military Justice), prescribes the policies and procedure pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  Paragraph 3-181 provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offence.

41.  Paragraph 3-18f(1) of Army Regulation 27-10, in effect at the time of the applicant's Article 15, notes that although 48 hours is a reasonable decision period, if the Soldier does not request a delay, the commander may immediately continue with the proceedings.

42.  Paragraph 3-28 of Army Regulation 27-10 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  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 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. 

43.  Army Regulation 27-20 (Claims), in pertinent part, paragraph 11-10d, states that when it is necessary to disapprove a claim or to allow a sum less than the amount claimed, the claimant must be informed, either orally or in writing, of the factual or legal basis for the decision.  The file must reflect that this explanation was provided to the claimant.  

44.  Paragraph 8-3 of chapter 11-21, in pertinent part, states that the DD Form 1844 (Claims Analysis Chart) is completed (Amount allowed column, remarks column, and where appropriate, either or both columns for exceptions) prior to settling the claim.  Paragraph 11-21(58), in pertinent part, provides procedures for the notice of a denial.

45.  Department of the Army Pamphlet 27-162 (Claims Procedures) sets forth procedures for investigating, processing, and settling claims against, and in favor of, the United States.  This publication is intended to be read and used in conjunction with AR 27-20 (Legal Service Claims), which sets forth guiding legal principles and policy. 

46.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within the 15-year statute of limitations.

47.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

48.  The applicant cites to Military Personnel Manual (MILPERSMAN) 1910-142 for the proposition that a discharge for commission of a serious offense may not be predicated on an Article 15 offense.  This manual is a Navy Manual and is not applicable in an Army discharge proceeding.  Army Regulation 635-200, paragraph 14-12(c), which was the basis for the applicant's discharge and DOES apply to Army discharges, describes a "serious offense" as "Commission of a Serious military and civilian, if the specified circumstances of the offense warrant separation and a punitive discharge is or would be authorized for the same or closely related offense under the MCM (Manual for Courts-Martial).  A punitive discharge is authorized under the MCM for each of the offenses listed in the applicant's Article 15.

49.  Army Regulation 40-501 (Standard of Medical Fitness), in effect at the time, set forth the basic authority for medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Chapter established policy and prescribed procedures for medical fitness standards for retention and separation, including retirement. 

50.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  Paragraph 3-18l provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  

51.  Paragraph 3-18 of Army Regulation 27-10 contains guidance on notification procedures and explanation of rights.  It states, in pertinent part, that the imposing commander will ensure the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15.  It further stipulates the Soldier will be informed of the following:  the right to remain silent, that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected; and that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial.  In addition, it states that the Soldier will be informed of the right to consult with counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, to present evidence, to request to be accompanied by a spokesperson, to hold an open hearing, and to examine available evidence.  

52.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

53.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

54.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  The regulation states that RE–3 applies to persons not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable. 

55.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code of "JKQ" is the appropriate code to assign to Soldiers who separated under the provisions of Chapter 14-12c, Army Regulation 635-200, for misconduct (Serious Offense).  The SPD/RE Code Cross Reference Table included in the regulation stipulates that the RE code assignment will be based on the Department of the Army directive authorizing separation.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the Article 15 imposed against her as a result of the claims adjudication process should be overturned and removed from her Official Military Personnel File (OMPF) because it was unjustified and unwarranted.  The applicant continues that she should be returned to active duty and her rank restored with eligibility of promotion based on the fact that her military history shows she had no prior disciplinary problems. 

2.  The applicant also contends that her family psychologist determined that she suffers from Post Traumatic Stress Disorder, as a consequence of the events that occurred during her military service from 1995 through 1998.  The applicant states that until now she did not have the mental capacity to pursue this administrative process. 

3.  Contrary to the applicant's claim of no previous incidents of misconduct during her eight years of service, her record shows that on 22 February 1996, she accepted NJP under Article 15, UCMJ, for being found drunk on 8 January 1996, for wrongfully over indulging in intoxicating liquor or drugs, and for being incapacitated for proper performance of her duties at her appointed place of duty.

4.  Records also show on 16 December 1997 the applicant received NJP under the provisions of Article 15 of the UCMJ for misconduct, on or before 15 May 1997 and on 6 August 1997 for, with intent to deceive, signing a false official record, in that the amount of the claim was over inflated, the purchase price and dates were fraudulent, and the extent of damage was intentionally overestimated to include claiming damage which did not exist and was known by the applicant to be false.  

5.  Records show she acknowledged receipt of the administrative action, and sought legal representation.  Evidence shows during her administrative proceedings she was afforded the opportunity to question the claims department representatives.  The CID memorandum shows that both the claims examiners reviewed the applicant's previous claims and in their opinion were confident she filed for damages previously claimed.  Normal procedures would be to refuse payment on questionable claims without pursuing criminal action; however, the amount claimed and the suspected degree of fraud, in their opinion, warranted review by CID.  The supervisor noted that items are normally taken from the individuals and disposed of so as not to cause future problems of this nature, but in this instance the applicant was allowed to keep the items for which she received RC.

6.  There is no evidence that the applicant's rights were violated during the imposition of the Article 15.  Further, the evidence of record confirms these actions were accomplished in accordance with the applicable law and regulation, and that the rights of the applicant were fully protected throughout these processes.  

7.  By regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  The evidence of record confirms the applicant waived her right to a trial by court-martial and opted for a hearing.  After considering the available evidence, the applicant's commander overwhelmingly found her guilty of the alleged misconduct.  

8.  The Article 15 regulatory standard further requires the commander to be convinced beyond a reasonable doubt before he finds the applicant committed the offense, which is the same high standard required of courts-martial panels and judges sitting alone as triers of fact prior to entering findings of guilt.  

9.  By regulation, there must be clear and convincing evidence of an error or injustice to support removal of a properly completed, facially valid Article 15 from a Soldier’s record by the ABCMR.  Absent evidence that exonerates the applicant from submitting a fraudulent claim, there is an insufficient evidentiary basis to support granting the requested relief related to restoration of her military status, restoring her grade, or changing her SPD Code to a different reason.

10.  By regulation, the RE code assigned to members separated by reason of JKQ, for misconduct is RE-3.  The RE-3 code assigned the applicant was and remains valid based on the authority and reason for her separation.  

11.  RE codes are a management tool used in the enlistment/reenlistment of Soldiers.  These codes are used for administrative purposes only and are not ordinarily used to deny a personnel action.  

12.  The applicant also contends she is suffering from Post Traumatic Stress Syndrome.  The applicant's record contained a Certificate of Psychiatric Evaluation, dated 2 March 1998, which shows she had an occupational problem, but there was no potential for self-harm or harm to others, and she had no significant psychiatric disease/disorder.  The evaluation form also shows that the applicant met the medical retention standards prescribed in Chapter 3 of Army Regulation 40-501 and does not warrant disposition through medical channels.  

13.  Therefore, the applicant was psychiatrically cleared for any action deemed appropriate by her command.  There is no evidence and the applicant has provided no evidence that shows she suffered from any or all of these conditions during her service or that her conditions caused her indiscipline and subsequent separation.  Based on theses facts, her contention is not sufficiently mitigating to warrant relief. 

14.  Based on the foregoing, the applicant's records should not be amended to show she is entitled to be returned to active duty and have her rank restored with eligibility of promotion.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ECP___  __PHM___  _MJF___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




		__Patrick H. McGann, Jr. __
		        CHAIRPERSON





INDEX

CASE ID
AR20070003888
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
r
ISSUES         1.
111.0000.0000
2.

3.

4.

5.

6.