IN THE CASE OF:	  

		BOARD DATE:	        9 December 2008

		DOCKET NUMBER:  AR20080015353 


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:

	a.  setting aside the reduction in rank and grade from staff sergeant (SSG)/
E-6 to sergeant (SGT)/E-5 that resulted from the imposition of nonjudicial punishment (NJP); and

	b.  reinstatement of the rank and grade of SSG/E-6 with all back pay, allowances, and time in grade from the date of reduction.

2.  The applicant's statement is provided by her counsel below.

3.  The applicant's evidence is submitted by the counsel below.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the same action as the applicant.

2.  Counsel argues that the applicant's request is based on two material errors:

	a.  She did not violate Article 92 of the Uniform Code of Military Justice (UCMJ).  Therefore, the vacation of her suspended punishment was an injustice.

	b.  The battalion commander unjustly denied the applicant the opportunity to rebut the vacation of the suspended punishment.  The result was that the applicant was reduced in rank and grade based on demonstrably false allegations.

3.  In support of her arguments, counsel presents the following:

	a.  On 22 June 2007, while deployed in Iraq, the applicant, a former drill sergeant (DS), was given an Article 15 for her interactions with her rater, a sergeant first class (SFC)/E-7, with whom she had a personality conflict.

	b.  Because the punishment imposed by the Article 15 was a reduction in rank and grade, it is obvious the imposing authority was sending a message to both parties (the applicant and SFC/E-7) to stop the nonsense.

	c.  The incident which culminated in the vacation of suspension resulted from the receipt of a Red Cross message for a Soldier in the command regarding the death of a great aunt.  Counsel contends the message turned out to be in error and was sent to a Soldier who did not exist in the local personnel database.  The social security number (SSN), however, did belong to a Soldier in the unit.  Following protocol after receipt of the message, the applicant logged the message and sent it to higher headquarters for guidance and clarification as to the name of the proper recipient.  The brigade took 3 days to respond and the response was incorrect information.  The wrong Soldier was given the message.

	d.  The new battalion commander used the above incident to vacate the applicant's suspended reduction in rank and grade by the former battalion commander, claiming the applicant was willfully derelict in her duties by failing to properly research and notify the chain of command of a Red Cross message.  The facts of the case do not support this.  In August 2008, counsel, on behalf of the applicant, requested the commander reverse the vacation of suspension and that request was denied.

	e.  Under the UCMJ, commanders are responsible for maintaining good order and discipline.  The UCMJ, in Part V(d)(1), provides that NJP is ordinarily appropriate when administrative corrective measures are inadequate due to the nature of the minor offense or the record of the service member.  The UCMJ also "dictates" that commanders considering NJP should consider the nature of the offense, the record of the service member, the need for good order and discipline, and the effect of NJP on the service member and the service member's record.  Finally, a reduction in grade is one of the most severe forms of NJP and it should be used with discretion.  While the new battalion commander had the authority to vacate the applicant's suspension, the decision to do so was a complete abuse of discretion.

	f.  Army Regulation 27-10 (Military Justice), paragraph 3-25, states that a commander may vacate any suspended punishment, provided the commander has determined that the individual committed misconduct amounting to an offense under the UCMJ during the suspension period.  The commander grossly misread Article 92 of the UCMJ.  A duty can be imposed by treaty, statute, regulation, lawful order, standing operating procedure (SOP), or custom of the service.  The commander alleged that the applicant willfully failed to properly research and notify the chain of command of a Red Cross message.  The commander has not alleged any regulation, order, SOP, or custom that the applicant violated.  He simply summarily concludes that she had a duty to research and notify the chain of command of the message.

	g.  The applicant has provided clear and convincing evidence that the vacation of her punishment was a significant injustice.  She did research the problem.  There was no SOP for situations involving a Red Cross message with internally inconsistent information (the wrong name or SSN).  The message was received on 25 August 2007.  She immediately requested guidance from higher headquarters and the Unit Personnel Accountability Report.  The date on that report is 6 September 2007.  This delay was not through any fault of the applicant and was not willful dereliction of duty.  There is not a single piece of evidence suggesting the applicant willfully, that is intentionally or purposely, was derelict in her duties.  As such, there was no violation of Article 92 in this case.

	h.  The applicant was denied the opportunity to present evidence or rebut the vacation of her suspended punishment.  Although such plenary action is not per se improper, Army Regulation 27-10, paragraph 3-25(d), strongly suggests a lack of regard for truth, due process, and fairness.

	i.  The vacation of suspension in a combat environment where the operations tempo is high is simply inappropriate, particularly where, as here, the applicant did nothing wrong.  Reversing the applicant's reduction in rank and grade would be consistent with her 14-year history of devotion to country and duty.

4.  Counsel provides a copy of the applicant's NJP and vacation of suspension, a copy of her Noncommissioned Officer Evaluation Report (NCOER) for the period 20 November 2006 – 19 August 2007, a copy of the Red Cross message, and a copy of the Unit Personnel Accountability Report.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a SGT/E-5 in the Regular Army.  At the time of the incident in question, the applicant was serving as a SSG/E-6 with Headquarters and Headquarters Company, 425th Brigade Special Troops Battalion, 4th Brigade Combat Team (Airborne), Forward Operating Base, Kalsu, Iraq.  She held the position as the Senior Human Resources Sergeant in the S-1.

2.  On 22 June 2007, the applicant accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice for 4 specifications of willfully disobeying a lawful order from SFC C____ on 20 February, 6 May, 2 June, and 5 June 2007; disobeying a lawful order from SFC S____ on 16 May 2007; being disrespectful in language and deportment to SFC C____ by clenching her fist, raising her voice and walking off without being dismissed on 16 May 2007; and being disrespectful to SFC O_____ by sucking her teeth, rolling her eyes, and raising her voice on 16 May 2007.  Her punishment consisted of a reduction in rank and grade from SSG/E-6 to SGT/E-5 (suspended, to be automatically remitted if not vacated before 22 December 2007).  The applicant did not appeal the NJP action.

3.  On 29 August 2007, the suspended punishment was vacated for violating Article 92, UCMJ, dereliction in the performance of her duties by willfully failing to properly research and notify the chain of command of a Red Cross message.  The battalion commander indicated that she should have known or reasonably should have known of her duties.  She was not given an opportunity to rebut the vacated punishment in accordance with paragraph 3-25 of Army Regulation 27-10.

4.  A review of the Red Cross message shows that it was directed to a B____, M____ R., SSN xxx-xx-xx81.  A review of the Unit Personnel Accountability Report shows that an SSG/E-6 with the same SSN was assigned to the unit; however, the last name and first name, while containing the same initials B____, M______ R., was different than on the Red Cross message.

5.  While not necessarily relevant to the instant case, the applicant's counsel alleges that setting aside the reduction in rank and grade would be consistent with her 14-year history of devotion to country and duty.  A review of the applicant's official military record reveals:

	a.  On 2 November 2005, while a DS at Fort Jackson, South Carolina, the applicant was issued a letter of concern by the unit commander for her unprofessional conduct during the current cycle.  She was the subject of several complaints by Soldiers.  A survey conducted showed she gave certain Soldiers preferential treatment and that her excessive use of profanity around Soldiers produced a negative environment.  The unit commander indicated that he had witnessed her negative interaction with other DS in front of Soldiers.  He advised her that he expected her to treat Soldiers with dignity and respect and conduct training within the bounds of training regulations and local policy letters.
	b.  On 12 November 2005, the applicant was formally counseled for a safety violation for having Soldiers doing push-ups at the hand grenade range prior to qualification.  Her actions could have led to a catastrophic incident for having Soldiers perform upper-body exercises prior to throwing live hand grenades.  Later the same day, while preparing the Soldiers to go in the qualification lanes, she was completely unprofessional by disrespecting her peers in front of Soldiers.  She accused them of always trying to make her platoon fall short.  In a professional manner, her peers immediately tried to correct her, stating that you should not accuse other DS in front of her Soldiers.  She was advised that this was not the first time she had a close safety call in a high risk range and a negative observation by a range cadre.  It was also not the first time that she confronted her peers in front of her subordinates.

	c.  On 24 January 2006, the applicant was formally counseled for telling a private to "stop pimping" and commenting, "that girl is confused about her sexuality" in front of trainees.

	d.  On 28 January 2006, the applicant was formally counseled for consuming a beverage while in the presence of Soldiers.  DS are not authorized to use any tobacco products, consume alcoholic beverages, coffee, or soft drinks while instructing or in the presence of initial entry training Soldiers.

	e.  On 8 May 2006, the applicant was formally counseled by the first sergeant on the findings of a Commander's Inquiry conducted on her inappropriate relationship with a married Soldier.

	f.  On 12 May 2006, the applicant was formally counseled for failing to report to her place of duty and dereliction of duty.  The counseling statement indicates that she reported to the command sergeant major/E-9 with her platoon sergeant for the initial reading of her Article 15.  After the meeting she was directed to change into Class B uniform and report to the parade field to perform her duty as an usher for the graduation ceremony.  She never reported to duty.

	g.  On 24 May 2006, the applicant was issued a memorandum of reprimand by the battalion commander for lying to a commissioned officer during an investigation.  He indicated that she had flagrantly admitted through electronic mail (e-mail) that she had a relationship with SFC (DS) W____, who was married.  When questioned during the Commander's Inquiry, she lied and told the investigating officer that she broke off the relationship as soon as she discovered SFC W_____ was married.  Later in the same official statement, she stated that she still did not know DS W______ was married.  In addition, she was reprimanded for her language and behavior demonstrated through her e-mails with SFC W_____'s wife and another Soldier, which were highly inflammatory and completely unprofessional.  He also indicated that she had already been rehabilitatively transferred because of her abuse of Soldiers after receiving a memorandum of concern.

	h.  On 30 May 2006, the applicant was removed from the DS Program for adverse reasons.  She was issued a relief-for-cause NCOER which indicated that she did not live up to the Army values of honor, duty, respect and integrity; that she placed integrity on the line by making false statements during an investigation; and that she failed to comply with instructions of superiors on several occasions.  Her rater indicated that she displayed poor judgment by having an inappropriate relationship with a married Soldier and by making false statements to a commissioned officer during an investigation; that she placed her own self-interest above the interest of her unit and the Army; and that the perception of her improper conduct adversely affected morale and discipline within the unit.  Her senior rater did not recommend her for promotion.  The reviewer indicated that further potential in the Army depended on achieving a higher level of maturity, and that while her technical expertise was unlimited, she needed further experience as a leader.  Her overall performance and overall potential for promotion was rated as poor.

	i.  The applicant appealed her relief-for-cause NCOER to the Enlisted Special Review Board (ESRB).  On 28 July 2007, the ERSB denied her appeal and made only an administrative correction changing the date that she passed the Army Physical Fitness Test.

6.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial (MCM), United States, 2005, hereafter referred to as the MCM, and the Rules for Courts-Martial (RCM) contained in the MCM.  Paragraph 3-24, Army Regulation 27-10, states that ordinarily punishment is suspended to grant a probation period during which a Soldier may show that the Soldier deserves a remission of the remaining suspended punishment.  An executed punishment of reduction or forfeiture may be suspended only within a period of 4 months after the date imposed.  Suspension of punishment may not be for a period longer than 6 months from the suspension date.  Further misconduct by the Soldier within the period of the suspension may be grounds for vacation of the suspended portion of the punishment.  Unless otherwise stated, an action suspending a punishment automatically includes a condition that the Soldier not violate any punitive Article of the UCMJ.

7.  Paragraph 3-25 of Army Regulation 27-10 stipulates, in pertinent part, that a commander may vacate any suspended punishment, provided the punishment is of the type and amount the commander could impose and where the commander has determined that the Soldier has committed misconduct (amounting to an offense under the UCMJ) during the suspension period.  The commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements, the commander reasonably believes to be relevant to the misconduct.  There is no appeal from a decision to vacate a suspension.  Unless the vacation is prior to the expiration of the stated period of suspension, the suspended punishment is remitted automatically without further action.  Misconduct resulting in vacation of a suspended punishment may also be the basis for the imposition of another Article 15.

8.  Commanders will observe the following procedures in determining whether to vacate suspended punishments:

	a.  If the suspended punishment is of the kind set forth in Articles 15 (e)(1) through (7), UCMJ, the Soldier should, unless impracticable, be given an opportunity to appear before the officer authorized to vacate the suspension to rebut the information on which the proposed vacation is based.  If appearance is impracticable, the Soldier should nevertheless ordinarily be given notice of the proposed vacation and the opportunity to respond.

	b.  In cases involving punishments not set forth in Article 15(e)(1) through (7), UCMJ, the Soldier will be informed of the basis of the proposed vacation and should be given an opportunity to respond, either orally or in writing.

	c.  If the Soldier is absent without leave at the time the commander proposes vacation and remains so, the commander, after 14 days from the date the Soldier departed absence without leave (AWOL), or on the last day of the suspension period, whichever is earlier, may, at the commander's discretion, vacate the suspension without providing notice or any opportunity to respond.

	d.  The following will be recorded according to notes 11 and 12, DA Form 2627 ; notes 9 and 10, DA Form 2627-1 ; or DA Form 2627-2 (see para 3-38b ):

		(1) Action vacating a suspension, to include the basis for vacation.

		(2) Whether or not the Soldier appeared or was otherwise provided an opportunity to respond.

		(3) An explanation, if the Soldier did not appear, in a case involving vacation of a suspended punishment listed in Articles 15(e)(1) through (7), UCMJ, or in other cases, if the Soldier was not provided an opportunity to respond.

		(4) Failure to provide notification and an opportunity to appear or to otherwise respond to the basis of a proposed vacation may result in the record of punishment being inadmissible in a subsequent court-martial, but will not, by itself, render a vacation action void.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contention that the applicant did not violate Article 92 of the UCMJ and that her suspended punishment was an injustice is without merit.  There is insufficient evidence to support this contention.  There is only a copy of the Red Cross message and of the Unit Personnel Accountability Report in evidence.  This evidence does not show the applicant followed protocol by logging the message in and sending it to higher headquarters for guidance and clarification; counsel only asserts that this is true.  In the absence of clear and convincing evidence to the contrary, it would be imprudent to substitute the Board's judgment for that of the local battalion commander who was on the scene and had access to all the available evidence.

2.  Counsel's contention that the battalion commander unjustly denied the applicant an opportunity to rebut the vacation of suspension, thus resulting in her reduction in rank and grade on demonstrably false allegations, is without merit.  First, the applicant has failed to show that any allegations against her were false. Further, Army Regulation 27-10, paragraph 3-25, states that the commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements, the commander reasonably believes to be relevant to the misconduct.  There is no appeal from a decision to vacate a suspension.  Later in his arguments, counsel admits that there is no specific right to rebuttal of a vacation of suspension, and that no impropriety exists in the applicant's case  However, he alternatively contends, it strongly suggests a lack of regard for the truth, due process, and fairness.  Counsel has failed to demonstrate how the commander lacked regard for the truth or denied the applicant due process.  Indeed, the battalion commander was extremely fair in suspending the applicant's reduction to grant her a probation period during which to show she deserved a remission of the remaining suspended punishment.  Given the multiple incidents of misconduct shown in her Article 15, the battalion commander was being extremely fair.

3.  Counsel's argument that the vacation of the suspended punishment was an abuse of the battalion commander's discretion is without merit.  As noted above, the applicant was provided a probation period with the suspension of her punishment and, in the battalion commander's opinion, she again violated an article of the UCMJ.

4.  Counsel's argument that no SOP existed for situations involving Red Cross messages with internally inconsistent information is not supported by the evidence.  He asserted earlier that the applicant followed "protocol" and properly logged in the message and directed it to a higher headquarters, which is  inconsistent with his argument that there was no SOP in existence.  He neglects to detail which "protocol" the applicant properly followed if, as he asserts, no guidance existed for the specific circumstance.  Further, as the Senior Human Resources SGT of the S-1, it is reasonable to assume that she should have known the process for identifying Red Cross messages with inconsistent information.  Finally, if the applicant believed that guidance for the situation was unavailable and/or unclear, it provides an even more enhanced reason for her to have contacted the chain of command rather than passing the message on to a higher headquarters. 

5.  While not specifically relevant to the instant case, counsel nonetheless contended that the Article 15 she received was based on her interactions with her rater, SFC C______.  This contention is without merit.  A review of the Article 15 shows she was charged with 7 instances of misconduct, i.e., either disobeying lawful orders from an SFC or being disrespectful in language and deportment to an SFC.  These charges involved 3 different SFCs, not just her rater, which is indicative of a pattern of misconduct that the applicant embarked upon since January 2006.

6.  Counsel requests that the applicant's reduction in rank and grade be reversed because it would be consistent with her 14-year history of devotion to country and duty.  The conduct the applicant displayed which led to the imposition of her NJP is strikingly similar to the pattern of behavior the applicant has demonstrated since at least January 2006.  She was counseled repeatedly; she received a memorandum of concern for safety violations as a DS, as well as abusive behavior towards trainees; she was rehabilitatively transferred as a DS due to her conduct towards trainees; she received a memorandum of reprimand for lying to an investigating officer and maintaining a relationship with a married man; she was removed from the DS Program; she received a relief-for-cause NCOER; and there is some evidence that she was read an Article 15 in 2006.  Her continual misconduct is not what is expected of an NCO of her rank and grade with her many years of military service.  It appears that in each of her assignments, the command has attempted to assist the applicant in performing and conducting herself to Army standards by providing counseling and by the imposition of NJP.  However, the applicant failed to respond appropriately to these efforts which ultimately resulted in her reduction in rank and grade.

7.  Given the above, there is no basis upon which to grant the applicant's request.  A thorough review of the evidence shows no arbitrary or capricious actions by the command, the requirements of law and regulation were met in imposing the NJP, and the rights of the applicant were fully protected.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

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.


															XXX
      _________________________
                 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)                                         AR20080015353



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ABCMR Record of Proceedings (cont)                                         AR20080015353



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