IN THE CASE OF:	  

		BOARD DATE:	    16 March 2010

		DOCKET NUMBER:  AR20090006174 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's previous request by:

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

2.  Counsel states the Board determined there was insufficient evidence to support the contention that the applicant did not violate Article 92, Uniform Code of Military Justice (UCMJ), and this is a request for reconsideration of that finding.  Counsel alleges that the applicant was unfairly punished on account of another Soldier's actions in erroneously delivering the Red Cross message.  On behalf of the applicant's request for reconsideration, counsel states the following:

	a.  On 29 August 2007, a previously suspended Article 15 punishment was vacated for allegations that the applicant violated Article 92, UCMJ, for willfully failing to properly research and notify her chain of command of a Red Cross message.  According to the battalion commander, the applicant should have reasonably known her duties.
	b.  On 25 August 2007, while deployed at Forward Operating Base Kalsu, Iraq, the applicant, as the senior human resources sergeant, received a Red Cross message from her brigade combat team (BCT) S-1 informing the S-1 that a Soldier's great aunt had died and requesting that the Soldier call for further information.  The message was in error.  The Soldier's name was not contained in the local personnel database; however, the message contained the social security number (SSN) of another Soldier in the battalion.

	c.  The applicant followed protocol and logged the message as received and sent the message back to the BCT for guidance and clarification as to the name of the proper recipient.  Three days later a Soldier from the BCT S-1 called the 
S-3 and the wrong Soldier was given the message.

	d.  The applicant's suspended punishment was vacated on account of the actions of another Soldier who improperly delivered the message.  Counsel argues that the vacation of the punishment was patently unfair.  The charge of a violation of Article 92, UCMJ, for a failure to obey an order or regulation was unsupported by both the law and the facts.

	e.  There is no regulatory guidance that the applicant can find addressing the procedures for handling erroneous Red Cross messages.  To impose an Article 15 punishment for a violation of Article 92 for a Soldier who simply requested guidance from higher headquarters with respect to a difficult issue is profoundly unfair.

3.  Counsel provides a 2-page letter, dated 15 April 2009, which is outlined above in support of the applicant's request for reconsideration.

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 AR20080015353 on 9 December 2008.

2.  Counsel provided new arguments on behalf of the applicant that will be considered by the Board.

3.  At the time of the incident in question, the applicant was serving as an SSG/
E-6 with Headquarters and Headquarters Company, 425th Brigade Special Troops Battalion, 4th BCT (Airborne), Forward Operating Base, Kalsu, Iraq.  She held the position of the senior human resources sergeant in the S-1.
4.  On 22 June 2007, the applicant accepted NJP under the provisions of Article 15, UCMJ, for four specifications of willfully disobeying a lawful order from SFC C____ on 20 February 2007, 6 May 2007, 2 June 2007, 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.

5.  On 25 August 2007, a Red Cross message was directed to a B____, M____ R., SSN XXX-XX-XX81, in the rank of SSG.  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 that on the Red Cross message.

6.  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 her duties.  She was not given an opportunity to rebut the vacated punishment in accordance with paragraph 3-25 of Army Regulation 
27-10 (Military Justice), but she was present at the vacation proceedings.

7.  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 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.

8.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record only contains a copy of the Red Cross message and of the Unit Personnel Accountability Report.  This evidence does not confirm that the applicant was unfairly punished under Article 92, UCMJ, based on another Soldier's actions.

2.  Counsel contends that the vacation of the punishment was patently unfair and the charge of a violation of Article 92, UCMJ, for a failure to obey an order or regulation was unsupported by both the law and the facts.  However, Army Regulation 27-10 stipulates 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.

3.  Based on the evidence available at the time in question, the commander determined the applicant had committed the offense of failing to properly research and notify the chain of command of a Red Cross message under Article 92, UCMJ.  As a result of this misconduct, the commander directed the suspended punishment of the reduction in rank be vacated.  Therefore, there is insufficient evidence which indicates the applicant's punishment under Article 92, UCMJ, was in error or unjust.

4.  Counsel's contention that there is no regulatory guidance that the applicant could find addressing the procedures for handling erroneous Red Cross messages is acknowledged.  Counsel seeks to characterize applicant's actions as falling short of a violation or failure to obey an order or regulation.  The applicant requested clarification on the message from her higher headquarters.  However, it appears she neither followed-up with alacrity nor informed her chain of command of the message, thus depriving it of the opportunity to quickly escalate the matter and resolve any confusion as to the identity of the Soldier to whom it pertained.  Her lack of due diligence given the circumstances was a dereliction of duty in violation of Article 92.  

5.  In the absence of evidence to the contrary, it must be presumed that the applicant's reduction in grade was correct.  Therefore, there is no basis for setting aside the reduction in rank and grade from SSG/E-6 to SGT/E-5 that resulted from the imposition of NJP or reinstating her rank and grade of SSG/E-6 with all back pay, allowances, and time in grade from the date of reduction.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080015353, dated 9 December 2008.



      _______ _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)                                         AR20090006174



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ABCMR Record of Proceedings (cont)                                         AR20090006174



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