IN THE CASE OF:	  

	BOARD DATE:	  	DOCKET NUMBER:  AR20080005350 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her reduction to the rank of sergeant (SGT), pay grade E-5 be set aside; that she be restored to the rank of staff sergeant (SSG), pay grade E-6, with entitlement to all back pay and allowances from the date of her reduction to pay grade E-5; and that she be reinstated on the promotion list for the rank of sergeant first class (SFC), pay grade E-7.

2.  The applicant defers to counsel for statements.

3.  In support of her request, the applicant provides five letters of recommendation.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states, in effect, that there are two material errors associated with the applicant's requests.  Firstly, in effect, given the applicant's history of performance, the nature of the offense, the responsibility she was given as a staff sergeant, the stress under running two dining facilities in Iraq, and the mitigating circumstances involved in her case, a reduction in rank was an abuse of discretion.  Secondly, in effect, the applicant's equal opportunity complaint was dismissed without any real analysis.  Counsel further states that the applicant's reduction in rank should be alternatively set aside on account of the disparate treatment of black females in the command.



2.  Counsel also states that the applicant was stationed in Iraq with nearly
17 years of active duty service.  She is a food service Soldier.  In the five months in Iraq, from May to late September 2007, she was the model Solider.  She was handpicked to set up and supervise the dining facility for the 603rd Aviation Support Battalion.  The applicant supervised the preparation of 2,300 meals per day and was personally responsible for 24-hour operations in the dining facility to support the operation of the 603rd Aviation Support Battalion.  She was given 15 Soldiers under her command.  In her last Noncommissioned Officer Evaluation Report (NCOER), prior to the Article 15, she was rated "Among the Best."  

3.  Counsel also states that the applicant was selected for promotion to the rank of SFC.  On 21 September 2007, barely one week after her selection, the commander of the 603rd Aviation Support Battalion imposed nonjudicial punishment on the applicant.  The applicant was charged for the following alleged misconduct:  one specification of being disrespectful towards a superior commissioned officer and two specifications of willfully disobeying a lawful order, all on 12 September 2007.  The punishment imposed was a reduction to pay grade E-5.  In effect, in one week, the applicant had gone from being an NCO with unlimited potential to essentially being reduced two ranks, from SFC to SGT.

4.  Counsel further states that the events leading to the applicant's Article 15 began on 31 August 2007.  She was given the minimum number of Soldiers necessary to accomplish her mission of maintaining 24-hour food operations at the dining facility.  Without consulting the applicant, 1SG H------ began tasking her Soldiers with various duties around the battalion.  On 31 August 2007, CSM D----- bumped into the applicant at her dining facility.  The applicant mentioned her issue with her Soldiers being tasked for various duties.  On 4 September 2007, 1SG H------ gave the applicant a developmental counseling form for failing to notify her before attempting to see CSM D-----.  By 12 September 2007, 1SG H------ had established a paper trail of counseling forms.

5.  Counsel also states that the applicant's alleged conduct during the 12 September 2007 counseling formed the basis for her Article 15.  The first sergeant claimed that the applicant was disrespectful in her mannerisms and alleged the applicant was given an order to stand at attention and regain her military bearing.  According to the first sergeant, the applicant grabbed her belongings and walked toward the door, later returning to CPT W--------'s office and requesting to see CSM D-----.  When the applicant entered CPT W--------'s office, he told her to have a seat and relax.  When asked to sign the counseling statement, the applicant declined.  CPT W-------- became angry and began yelling at the applicant, that she was being disrespectful by not signing the counseling statement.  The applicant tried to explain that she had submitted a statement that morning and walked out of the office to get a copy of the statement.  According to the first sergeant's sworn statement, CPT W-------- ordered the applicant to come back several times and the applicant came back approximately 5 minutes later.  Five minutes later is an exaggeration.  The applicant grabbed the sworn statement from her office and returned to CPT W--------'s office and asked to see CSM D-----.  CPT W-------- began yelling at her, that she was not going to see the CSM, and that she was relieved of her duties as the dining facility manager.  The applicant left.

6.  Counsel also states that CPT W-------- immediately requested nonjudicial punishment for the applicant for alleged disrespect towards a superior commissioned officer and failure to obey a lawful order.  Also on 13 September 2007, the applicant saw the psychologist with the 785th Medical Company.  Previously on 16 August 2007, the applicant's Soldiers had begun to take note that she was "under stress."  The applicant's reduction in grade was imposed on 23 September 2007.  On 1 November [sic] October 2007, CPT W-------- asked the command to bring the applicant before a Summary Court-Martial.  The applicant was charged on 19 October 2007 and the Summary Officer erroneously found her guilty of telling CPT W--------, in an allegedly false official statement, that "I don’t remember ever speaking to SSG D------ or making a sworn statement."  She was given restriction to the dining facility, quarters, and place of worship.  

7.  Counsel further states that on 9 January 2008, the applicant was administratively removed from the E-7 promotion list.  Shortly after, she made a gender and racial discrimination informal complaint.  In allegation number 4, the applicant had alleged that only black female Soldiers received Uniform Code of Military Justice (UCMJ) punishment.  The Commander's Inquiry found that her allegation was contradicted by her first allegation.  The applicant's complaint was supported by the Commander's Inquiry.  Another Soldier's reduction in rank was suspended, unlike the applicant's.  Thus, her complaint was valid that black female Soldiers were treated differently.

8.  In support of the applicant's application, counsel provided a copy of a list of incidents in the 603rd Aviation Support Battalion, her Enlisted Record Brief, her NCOER for the period June 2006 to May 2007, her DFAC (dining facility) Sensing Session, her DA Forms 4856 (Developmental Counseling Form), her DA Form 2627 (Report of Proceedings Under Article 15, UCMJ), three DA Forms 2823 (Sworn Statement), her DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG), her SFC promotion orders, and her Record of Trial by Court-Martial.





CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that she enlisted in the Regular Army, in pay grade E-2, effective 5 May 1992.  She was promoted to pay grade E-6 effective 1 June 2002.

2.  The applicant's NCOER for the period from June 2006 to May 2007, shows she was rated "among the best" for overall performance and potential.

3.  The results of a DFAC Sensing Session, dated 16 August 2007, states, in effect, the Soldiers working in the dining facility felt the applicant was under stress, that morale was low, and that all Soldiers in the dining facility wanted to work elsewhere.

4.  A DA Form 4856, dated 4 September 2007, shows the applicant was counseled by her 1SG for failing to follow a lawful order for blatant disrespect; and for her blatant disregard for the standards.  The applicant was advised that any further instances of this nature would result in a recommendation for UCMJ.  The applicant was tasked to prepare a 2,500 word essay on the importance of following lawful orders and being respectful to those who were superior to her.

5.  In a DA Form 2823, dated 10 September 2007, SFC W------ stated that on 4 September 2007, the applicant brought to her attention that one of her Soldiers confessed to having inappropriate relations with his cousin.  

6.  A DA Form 4856, dated 12 September 2007, shows the applicant was counseled by her 1SG for failing to obey lawful orders.  The applicant was advised that as part of her corrective training, she was required to present classes to the counselor and the commander on respect, loyalty, communication, and duty.  The applicant was requested to identify how she failed to comply with Army standards and how she planned to correct those deficiencies so there would not be any issues in the future.

7.  A DA Form 4856, dated 12 September 2007, shows the applicant was counseled by her 1SG for failing to follow a lawful order by not signing out at the company on 12 September 2007.  

8.  A DA Form 2823, dated 13 September 2007, shows the applicant's 1SG stated that on 12 September 2007, while counseling the applicant, she became disrespectful in her mannerisms.  Because of the level of the applicant's disrespect, CPT W-------- gave her a lawful order to stand at attention and regain her military bearing.  Instead of assuming the position of attention, the applicant grabbed her belongings and walked out the door.  CPT W-------- gave her a second lawful order to come back and she ignored him.  Approximately
5 minutes later, the applicant returned to CPT W--------'s office and stated she wanted to see CSM D-----.  At that time CPT W-------- gave her a fourth lawful order to come inside his office.  She again disregarded his order and walked away.  At that time he told her that she was relieved of her position and she was 
not to return to the DFAC.  The applicant proceeded toward the DFAC and later left.  The 1SG further stated that the level of disrespect displayed by the applicant toward CPT W-------- was clearly the most blatant she had witnessed in her military career.

9.  A DA Form 4856, dated 13 September 2007, shows the applicant was counseled by CPT W-------- for being disrespectful towards a superior commissioned officer and failing to obey order or regulation.  

10.  A DA Form 268, dated 13 September 2007, shows that CPT W-------- initiated a flagging action against the applicant.

11.  An undated Commander's Request for Nonjudicial Punishment Under Article 15, UCMJ, shows CPT W-------- requested the applicant be given a Field Grade Article 15 for being disrespectful towards a superior commissioned officer and failure to obey a lawful order.

12.  In a memorandum, dated 13 September 2007, the applicant was evaluated by a psychologist and cleared for all duties.

13.  DA Forms 2823, page 1 of 3 pages and pages 1 & 2 of 2 pages, undated, contains the applicant's statements pertaining to a conversation between a SSG D------ and herself referencing some personal issues on 12 September 2007.  The applicant stated, in effect, that she did not sign the counseling statements because the 1SG had said that her corrective training was substandard.  The commander started yelling and told her that she was disobeying a direct order by not signing.  The applicant also stated that the commander yelled, "get on your feet" and that she was being disrespectful by shaking her head.  She got up and reached for her bag and weapon.

14.  Department of the Army, U.S. Army Human Resources Command Order Number 256-25, dated 13 September 2007, was published announcing the applicant's promotion to the rank of SFC, with an effective date of 1 October 2007.  The orders advised that the promotion was not valid and would be revoked if the Soldier concerned was not in a promotable status on the effective date of promotion.  

15.  On 21 September 2007, the applicant accepted punishment under Article 15, UCMJ, for behaving disrespectfully towards her superior commissioned officer, disobeying a lawful command to stand at attention, and disobeying a lawful command to stop and get back in the office, on 12 September 2007.  The punishment included reduction to the rank of SGT, pay grade E-5.  The original DA Form 2627 was directed to be filed on the restricted portion of her official 
military personnel file (OMPF).  The applicant did not demand a trial by court-martial and elected to appeal the punishment.  Her appeal was denied on 23 September 2007.

16.  A DA Form 2823, dated 3 October 2007, shows the applicant's 1SG stated that on 5 September 2007, SSG D------ had told the applicant that he may be in trouble.  She approached the applicant and let her know that she needed to write a sworn statement describing the conversation she had with SSG D------.  At no time did the applicant express her concerns about writing the sworn statement.  After seeking legal advice, the applicant wrote a vague statement and CPT 
W-------- told her that he needed a more detailed statement and he gave her some guidance.  From there she wrote her second statement.

17.  A DA Form 2823, dated 3 October 2007, shows CPT W-------- stated that on 5 September 2007, the 1SG related that the applicant had informed her that SSG D------ had confessed to having a sexual relationship with SFC W------‘s first cousin.  He instructed the 1SG that he wanted to see both the applicant and SFC W------ that morning.  Later that same morning, the applicant entered his office and related that SSG D------ had come into the DFAC office and wanted to talk to her about some issues going on at home.  CPT W-------- also stated that a few days later he was having issues with the applicant concerning her statement.  He was informed the applicant was not going to write a sworn statement until she spoke with someone at the office of the Judge Advocate General.  CPT W-------- further stated, in effect, that he later asked the applicant if the statement she wrote was a false statement and she stated that she could not remember making a statement.

18.  On 19 October 2007, a Charge Sheet (DD Form 458) was prepared by the Commander, Headquarters Support Company, 603rd Aviation Support Battalion, Camp Striker, Iraq.  The applicant was charged with one specification of, with intent to deceive, signing an official sworn statement, which statement was false in that the accused confessed it to be false on 1 October 2007; and one specification of, with the intent to deceive, making an official statement which statement was totally false, on 3 October 2007.

19.  On 1 November 2007, the applicant appeared before a summary court-martial and was found guilty of violation of Article 107 of the UCMJ and of making a false official statement on 3 October 2007.  The applicant was sentenced to restriction and work call for 30 days.

20.  In a memorandum, dated 9 January 2008, the Chief, Enlisted Promotions Branch, Army Human Resources Command, Alexandria, Virginia, advised the applicant through her command, that her name had been administratively removed from the promotion list based on her field reduction.

21.  Department of the Army, U.S. Army Human Resources Command Order Number 9-3, dated 9 January 2008, was published revoking Order Number
256-25, dated 13 September 2007, pertaining to the applicant's promotion to SFC.

22.  In a memorandum, dated 16 January 2008, the Deputy Brigade Commander, Headquarters, 3rd Combat Aviation Brigade, 3rd Infantry Division, stated that the applicant had made five complaints regarding possible gender and race discrimination.  On 14 January 2008, a commander's inquiry was directed to determine the circumstances behind the applicant's complaints. Findings of the Inquiry were as follows:  (a)  it was concluded that allegation number 1 was not substantiated; (b)  it was concluded that allegation number 2 was not substantiated; (c)  it was concluded that allegation number 3 was not substantiated; (d) it was concluded that allegation number 4 (only black female Soldiers received UCMJ punishment) was not substantiated; and (e)  it was concluded that allegation number 5 was not substantiated.

23.  In a memorandum, dated 22 February 2008, submitted on behalf of the applicant, a member of the applicant's unit stated that the applicant truly deserved to wear the rank that she so diligently earned.  In her opinion, what happened to the applicant was very unfair.  She strongly recommended the applicant be reinstated to the rank of SFC and given a rehabilitative transfer to another Brigade due to unjust punishment awarded to her by her Battalion Commander as well as others in her unit and even at the brigade level.

24.  In a memorandum, dated 22 February 2008, submitted on behalf of the applicant, a member of the applicant's unit stated, in effect, that the applicant had been treated unfairly.  She strongly recommended the applicant be reinstated to the rank of SFC and given a rehabilitative transfer to another Brigade due to unjust punishment awarded to her by her Battalion Commander as well as others in her unit and even at the brigade level.

25.  In a memorandum, dated 25 February 2008, a platoon sergeant, Headquarters, 3rd Combat Aviation Brigade, 3rd Infantry Division, requested the reinstatement of the applicant.  She stated that the applicant was involved in a situation in which she not only lost her promotable status, but her rank of SSG as well.  She had expressed her concerns for such a harsh reprimand considering what happened to get the applicant to that point and the stress she had been under at the time running a dining facility in conjunction with preparing a fixed dining facility to open and take the place of the temporary facility.

26.  In a memorandum, dated 26 February 2008, submitted on behalf of the applicant, a member of the applicant's unit stated that he strongly recommended the applicant be reinstated and given a rehabilitative transfer to another unit to first show that the UCMJ system was fair and did not punish Soldiers who try to do the right thing.  

27.  In a memorandum, dated 27 February 2008, submitted on behalf of the applicant, the Dining Facility Manager, Camp Striker, Iraq, requested the applicant be reinstated.  She stated that the applicant was an outstanding leader and mentor for not only the Soldiers but NCOs as well.

28.  Army Regulation 600-37, pertains to the administration of military justice.  Chapter 3, specifies that nonjudicial punishment is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by the formal rules of evidence and may consider any matter, including un-sworn statements the commander reasonably believed to be relevant to the case.  Before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense(s).  Furthermore, whether to impose punishment and the nature of the punishment is the sole discretion of the imposing commander.  

29.  Army Regulation 600-37, Chapter 3, also specifies that a Soldier will be given the opportunity to accept the Article 15 and request to decide whether to demand trial by court-martial.  Nonjudicial punishment may be set aside upon a determination that, under all the circumstances of the case, a clear injustice has resulted.  A clear injustice means that an un-waived legal or factual error has clearly and affirmatively injured the substantial rights of the Soldier.  New evidence unquestionably exculpating the individual is a cited example whereas the fact that a Soldier's subsequent performance has been exemplary or that the punishment adversely affects career potential is expressly excluded from the definition of clear injustice.

30.  Army Regulation 600-8-19, prescribes the policies and procedures for the promotion of enlisted Soldiers.  Chapter 4 of this regulation specifies that Headquarters, Department of the Army (DA) would announce the results of a selection board by command memorandum.  Paragraph 4-16 specifies that commanders will promptly advise the Total Army Personnel Command to remove 
any Soldier's name for a DA recommended list who is or has been reduced in grade.  A Soldier removed from a promotion list may appeal that action only in limited circumstance and when the underlying basis of the removal is subsequently determined to be erroneous.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to correction to her records by setting aside her reduction to the rank of SGT, pay grade of E-5; restoration to the rank of SSG, pay grade E-6, with entitlement to all back pay and allowances from the date of her reduction to pay grade E-5; and that she be reinstated on the promotion list to the rank of SFC, pay grade E-7.  She has not shown error, injustice, or inequity for the relief she now seeks.  

2.  The applicant's and counsel's contentions have been noted; however, there is an insufficient evidentiary basis to support granting the requested relief.  The evidence shows the applicant was serving in the rank of SSG, pay grade E-6, when she was administered punishment under Article 15 of the UCMJ, for behaving disrespectfully towards her superior commissioned officer, disobeying a lawful command to stand at attention, and disobeying a lawful command to stop and get back in the office.  The punishment imposed was for reduction to the rank of SGT.  The applicant signed and accepted the punishment imposed under the provisions of Article 15 of the UCMJ.  Evidence further shows that she did not demand a trial by court-martial and elected to appeal the punishment imposed.  Her appeal was denied on 23 September 2007 and she was reduced to pay grade E-5 effective 1 October 2007.  

3.  The evidence also shows that orders were published on 13 September 2007, announcing the applicant's selection for promotion to SFC with an effective date of 1 October 2007.  The orders also stated that if the applicant was not in a promotable status on the effective date, her name would administratively be removed from the promotion list.  Therefore, since the applicant was not in a promotable status on the effective date, her name was properly removed from the promotion list.

4.  The applicant and counsel allege that she would have been promoted had the incident not occurred.  However, they have provided no evidence showing that the punishment imposed was inequitable or unjust for the offenses committed.  They have also provided no evidence to show that she was unjustly denied promotion to E-7 on 1 October 2007.  After considering the supporting documentation and the applicant's and counsel's statements, neither the applicant nor counsel have provided clear and convincing evidence that the punishment, reduction to pay grade E-5, and removal from the E-7 promotion list was unjust, in whole, or in part, to support their requests.

5.  The evidence further shows the applicant appeared before a summary court-martial on charges unrelated to the punishment which resulted in her reduction in rank.  In January 2008, a commander's inquiry concluded that the applicant's complaints regarding possible gender and race discrimination were not substantiated.  Therefore, the contentions of the applicant and counsel regarding the applicant's gender and racial complaint are without merit.

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant’s requests.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  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.



      ___________x____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005350



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ABCMR Record of Proceedings (cont)                                         AR20080005350


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