BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20090020114 


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 that the punishment imposed against her as a result of being administered a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) be set aside.

2.  The applicant states:

* the punishment she received for minor infractions, including a "hard-bust" reduction in rank from staff sergeant (SSG)/E-6 to sergeant (SGT)/E-5, was unjust given the circumstances
* prior to May 2008, she served honorably and received positive Noncommissioned Officer Evaluation Reports (NCOERs)
* much of her failure to properly adhere to the directives of her supervisors occurred while she was balancing severe mental and physical health problems that should have mitigated the punishment she received

3.  The applicant provides:

* a memorandum from her counsel, dated 5 October 2009
* a flyer entitled "USO Tours, Classes & Orientations"
* five letters from a social worker, a guidance counselor, and associates attesting to her good character and service conduct
* a letter from her physician to the President, Physical Evaluation Board (PEB), dated 1 September 2009
* 
a self-authored memorandum to the PEB, dated 1 October 2009
* PEB Proceedings, dated 1 October 2009
* a copy of her physical profile, dated 17 June 2009
* Medical Evaluation Board (MEBD) Summary, dated 16 June 2009
* DA Form 2627, dated 7 August 2008, with supporting documents
* Orders 238-5, dated 25 August 2009
* Certificate of Promotion to SSG, dated 1 September 2009
* electronic mail (email), dated 22 June 2009, with supporting photographs

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Article 15 punishment of reduction in rank from SSG to SGT be set aside.

2.  Counsel states:

* the applicant's supervisors failed to fully appreciate the gravity of the mental and physical health problems she had been experiencing from August 2002 - August 2008
* nonjudicial punishment (NJP) was imposed against her for two very minor alleged infractions punishable only in the military under the UCMJ
* her supervisors perceived her as being beset by constant stress as a malingerer given the otherwise strong outward appearance she projected as she sought medical/mental health treatment to heal herself
* given the disproportionate severity of the punishment imposed, it is clear that it was the intent of her command to force her back to work without regard for her documented medical condition
* in assessing the "legal sufficiency" of the Article 15 punishment, an Army Staff Judge Advocate (SJA) review would reasonably struggle with whether there was proof of "willfulness" in the supposed disobeying of lawful orders given the applicant's mental state
* an even greater question is whether the alleged offenses were sufficiently related to any military duty
* as stated in the Manual for Courts-Martial (MCM), paragraph
14d(2)(a)( iii), Lawfulness of the Order, "(t)he order may not, without such a valid military purpose, interfere with private rights or personal affairs"
* the imposition of the maximum punishment available to a field grade officer strongly suggests that something more than legality and fairness were guiding the unit commander's punitive discretion
* few battalion commanders would resort to such a stiff penalty given the petty nature of the offenses
* 
the immediate use of maximum punishment suggests that haste resulted in error and unjustness that warrants the punishment being set aside
* apparently unaware of the magnitude of the applicant's health detriments, her supervisors and commander thought they were helping by limiting her ability to complete her degree requirements
* her command's "no work, no play" intentions were to punish her by their  directive of questionable legal authority to deprive her of taking a college computer course during her off duty personal time
* the applicant served honorably as a highly acclaimed and promoted Army Broadcast Journalist until she was leveled by the traumas and physical pain in the form of "8/10" level abdominal pain on a regular basis
* she was healing herself by taking courses to advance her education and her Army career
* the applicant's integrity, work ethic, and reliability were never before questioned by anyone until questioned by those desirous of getting her back in the trenches where she was needed, not at medical/mental health appointments, college classrooms, and United Service Organizations outings
* her 1 September 2009 promotion to SSG is a testament to her continuing to move forward to the best of her ability
* if not for the unjust punishment imposed against her, she might have retired in the rank of sergeant first class (SFC)/E-7 or higher

3.  Counsel provides no additional information.

CONSIDERATION OF EVIDENCE:

1.  On 4 June 1999, the applicant enlisted in the Regular Army (RA) for 4 years, in the rank/grade of private (PV1)/E-1.  She completed training as a Broadcast Journalist.  She remained on active duty through two reenlistments and an extension and she was promoted through the ranks to SSG.  She arrived in Germany on or about 27 October 2006 and she was assigned to the American Forces Network Europe (AFNE) in Kaiserslautern, Germany.

2.  Policy #34 (Leaves and Pass) memorandum, dated 5 March 2007, was authored by the commander of Headquarters, AFNE.  It provides clarification for when a Soldier needs to go on pass or leave.  The memorandum states "A Soldier does not need a DA Form 31 if he/she remains within a 250 mile radius of their home station.  DA Form 31 is required when a service member is to travel outside of the 250-mile radius."

3.  On 29 May 2008, the applicant was counseled regarding enrollment in college courses while on a reduced workload.  During counseling she was told:

* she was not permitted to take college courses while she was on a reduced workload
* the purpose of cutting her workload was to reduce the amount of stress to which she was subject
* while her command was actively seeking to improve her mental health through a reduction in her workload, she could not enroll in any college courses
* this applied to all college courses, whether she intended to use Army tuition assistance or not
* she would refrain from taking any college courses until she was notified in writing from her command that she was permitted to enroll

4.  On a DA Form 4856 (Developmental Counseling Form), dated 29 May 2008, she acknowledged she was counseled and disagreed with the information/instructions provided by her supervisor.  She stated that she:

* would rather have a full workload than to stop taking college courses
* was currently taking a class she signed up for on 24 March 2008 which was ending on 22 June 2008
* was scheduled to take a "PROXIS Exam" on 30 July 2008
* still had one class left on "laptop option" and time to finish class was in June 2009 or at the expiration of her term of service
* would have to pay back money "for laptop" if she did not finish
* enjoyed taking classes because spending time with classes relaxes her and reduces her stress level

5.  In a memorandum to the applicant's first sergeant, dated 3 June 2008, the AFN Kaiserslautern Station Commander, a master sergeant, U.S. Air Force, stated:

* she briefed the applicant on the command's mileage pass policy on 20 March 2008
* she told her she would need to request a mileage pass for any travel over 300 miles or across an international border
* investigation revealed the applicant crossed an international border and exceeded the 300-mile travel limit without requesting a mileage pass through her command
* on 10 May 2008 she took a USO tour of Volendam, the Netherlands, but she did not request a mileage pass as required by command policy

6.  In a second memorandum, dated 3 June 2008, the AFN Kaiserslautern Station Commander notified the first sergeant that the applicant:

* was told by her supervisor on 13 May 2008 she was not permitted to take college courses
* was told the restriction was a complement to granting her a reduced workload to cut down her stress level
* she enrolled in a college course on 21 May 2008

7.  On 11 July 2008, the AFNE command was notified that the applicant enrolled in a college course on 22 May 2008 and she dropped the class on 13 June 2008 for "military reasons."

8.  On 7 August 2008, the applicant was administered an Article 15, UCMJ, for the following offenses:

* violation of Article 92, UCMJ, for failing to obey a order by wrongfully not submitting a DA Form 31 when traveling outside of a 250 mile radius on 10 May 2008, after having knowledge of a lawful order issued by her commanding officer
* violation of Article 90, UCMJ, for willfully disobeying a lawful command from her commanding officer on 22 May 2008, to not enroll in Human Factors in Information Systems through the University of Maryland University College

9.  Her punishment consisted of a reduction to SGT/E-5 and a forfeiture of $1,285.00 pay per month for 2 months.  She elected:

* not to demand trial by court-martial and to submit additional matters
* to have a closed hearing
* to have a person speak in her behalf
* to present in person matters in defense, mitigation, and/or extenuation

10.  In a memorandum, dated 11 August 2008, the applicant's immediate supervisor notified the AFNE first sergeant that he informed her of the following on 13 May 2003:

* due to the reduction in workload recommended by her doctor she would not be permitted to take college courses
* the decision had been made at AFNE Headquarters level and had come down through the AFNE first sergeant and station commander
* 
the decision was based on reducing her stress level
* she would have to wait until her medical situation was better before headquarters would grant her permission to take classes again
* it would not be responsible of the command to allow her to take college courses while reducing her workload and it was not compatible to the overall goal of minimizing stress
* there were no witnesses present when he told her of the decision and he did not initially present it since he trusted her judgment as a noncommissioned officer

11.  On 11 August 2008, the SJA Trial Counsel notified the brigade commander the applicant submitted an appeal to the Article 15 and he had conducted further inquiry as permitted by Army Regulation 27-10 (Military Justice), paragraph
3-34(c).  He stated in his opinion the proceedings were conducted in accordance with law and regulation; however, there was insufficient evidence to support charge two, violation of Article 90 of the UCMJ.  He stated that the evidence contained within the Article 15 packet did not support the conclusion that the applicant willfully disobeyed a lawful command of a superior commissioned officer because in her rebuttal, there was insufficient evidence that she knew the order not to enroll in college courses was coming from a superior commissioned officer since the order was relayed to her by her supervisor.  However, he stated, upon further inquiry and relying on the enclosed memorandum, dated 11 August 2008, written by her supervisor, he believed there was sufficient evidence to support a finding of failing to obey a lawful order which is a lesser offense.  The SJA told the brigade commander if he found that the evidence supported a finding of failing to obey a lawful order, he believed the punishment as imposed was appropriate.  However, if he did not believe the evidence supported a finding of failing to obey a lawful order, then the punishment imposed was inappropriate and he recommended the brigade commander offer partial relief in the form of his choosing.  The SJA told the brigade commander:

* as the superior authority, he may conduct an independent inquiry into the case, if necessary or desirable
* in acting on the appeal, he may exercise the same powers as may be exercised by the imposing commander or the imposing commander's successor-in-command
* only one appeal is permissible under Article 15 proceedings

12.  The appeal that the applicant submitted is not contained in her Official Military Personnel File (OMPF).

13.  On 15 August 2008, the brigade commander granted a portion of her appeal amending her punishment by suspending the forfeiture of pay, which was to be automatically remitted if not vacated before 7 October 2008.  He recommended the Article 15 be filed in the performance section of her OMPF.

14.  On 16 June 2009, the applicant was evaluated by an MEBD to determine whether she would be referred to a PEB.  The MEBD diagnosed her with the following not existing to prior service (EPTS), incurred during active service, and permanent aggravation by service conditions:

* Post Traumatic Stress Disorder (PTSD)
* Major Depression, Not Otherwise Specified
* Anxiety Disorder
* Chronic Pelvic Pain

15.  The MEBD concluded she did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and the board recommended referral to a PEB for further adjudication.

16.  U.S. Army Garrison, Kaiserslautern, Orders 238-5, dated 25 August 2009, promoted the applicant to the rank/grade of SSG/E-6, with an effective date and date of rank of 1 September 2009.

17.  On 1 October 2009, a PEB convened to determine the applicant's fitness for retention on active duty.  The PEB diagnosed her with PTSD with depression and anxiety, and chronic pelvic pain.  The PEB found her physically unfit for continued service with a combined 70 percent (%) disability rating percentage and recommended she be placed on the temporary disability retired list (TDRL) with reexamination during July 2010.

18.  The applicant was placed on the TDRL on 5 January 2010 in the rank/grade of SSG/E-6.

19.  Army Regulation 27-10 prescribes policies and procedures pertaining to the administration of military justice.  Chapter 3 states that a commander will personally exercise discretion in the NJP process by evaluating the case to determine whether proceedings under Article 15 should be initiated, determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial, and determining the amount and nature of any punishment if punishment is appropriate.

20.  Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  In pertinent part, it states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, the question in this case is whether the Article 15 she received was issued in error or unjust.  The evidence of record shows that it was not.

2.  During counseling she was told she was not permitted to take college courses while she was on a reduced workload for the purpose of reducing the amount of stress to which she was subject and yet she elected to ignore what she was instructed.  She was also briefed on the command's mileage pass policy and she elected to cross an international border and exceed the 300-mile travel limit without requesting a mileage pass through her command.

3.  If she believed the allegations made against her were false or were the result of unreasonable acts by her chain of command she had the option of demanding trial by court-martial; however, she elected not to do so.

4.  Although it is not filed in her OMPF, she appealed the Article 15 and the brigade commander granted a portion of her appeal, amending her punishment by suspending the forfeiture of pay.

5.  Counsel's contentions have also been considered and while he may believe that the applicant's offenses were petty, or that it was the command's attempt to force her back to work without regard for her documented medical condition, his contentions are not supported by the evidence.

6.  As previously stated, the SJA Trial Counsel stated that there was insufficient evidence to support charge two, violation of Article 90 of the UCMJ in that the evidence contained within the Article 15 packet did not support the conclusion that the applicant willfully disobeyed a lawful command of a superior commissioned officer.  The SJA also stated she could be found guilty of an Article 92 violation for disobeying a lawful order.  This is the SJA's interpretation of the evidence.  The applicant undoubtedly knew who her commander was and

when she was told about the order not to attend school, she was also told it came down from higher headquarters.  As such, it is reasonable to believe she knew the order came from a superior commissioned officer.  Accordingly, it was not improper for the appellate authority to reject the SJA's advice by upholding an Article 90 violation.

7.  In any case, even if there was an error because Article 92 was the proper article as suggested by the SJA, the error is harmless.  The same punishment was authorized and the appellate authority did grant some relief by suspending the forfeiture portion of the imposed punishment.

8.  Based on the evidence of record her medical conditions created stress upon her which was the basis for reducing her workload.  The medical evidence of record shows that her command was considering her health when she was told not to take college courses until her health got better, regardless of whether or not she "enjoyed taking classes because spending time with classes relaxes her and reduces her stress level."

9.  Neither the applicant nor her counsel has submitted sufficient evidence to show that the Article 15 she received was unjust as she clearly disobeyed the orders given by her chain of command.  Based on the available evidence in this case, the Article 15 she received is not unjust, nor is it disproportionate to the punishment that was imposed.  The Article 15 is properly filed in the performance section of her OMPF.

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)                                         AR20090020114



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ABCMR Record of Proceedings (cont)                                         AR20090020114



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