IN THE CASE OF:	  

		BOARD DATE:	  5 May 2011

		DOCKET NUMBER:  AR20100023489 


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 correction of her military records to show the Army Grade Determination Review Board had determined that she held pay grade E-5 satisfactorily.  Furthermore, she requests that her rank be restored.

2.  The applicant states she received NJP on 12 June 2010 from her battalion commander.  The punishment included reduction to pay grade E-4.

	a.  She appeals the reduction and requests restoration of her rank to sergeant, pay grade E-5 because the command committed a variety of offenses resulting in a hostile work environment.

	b.  She contends that the offenses committed by her chain of command are clearly documented in the enclosed sworn statements.

	c.  She contends that the offenses violated the Army's equal opportunity program, prevention of sexual harassment, and the victim advocacy program.

	d.  She contends the commander erred in finding her guilty based on an illegal blood test conducted in the absence of a probable cause memorandum as required by Fort Lewis Regulation 600-7.

	e.  She contends that because of the abuse and harassment, she was diagnosed with post traumatic stress disorder (PTSD) and was placed in a 5-week rehabilitation program on 8 June 2010.

	f.  She contends that she has worked her entire career to become an NCO and has had a long history of superior performance.  Taking her NCO rank was disproportionate to the offense.

3.  The applicant provides copies of her 4-page sworn statement, dated 21 June 2010; a sworn statement from another Soldier in the applicant's unit, dated 1 July 2010; a list of witnesses; four DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) covering the period from 1 April 2007 through 17April 2010; and an assumption of command memorandum, dated 26 April 2010.

CONSIDERATION OF EVIDENCE:

1.  On 22 January 2004, the applicant enlisted in the Regular Army.  She completed her initial training and was awarded military occupational specialty 25B (Information Technology Specialist).

2.  On 1 April 2007, the applicant was promoted to sergeant, pay grade E-5.

3.  On 10 July 2009, the applicant was assigned for duty at Fort Lewis, Washington.  She was subsequently assigned to the Rear Detachment, 4th Battalion, 9th Infantry Regiment.

4.  On 2 March 2010, the applicant was counseled for missing morning formation and for not being at her appointed place of duty.  She was reminded that she had been counseled previously for a similar absence.  The applicant agreed with the contents of the counseling statement and signed and dated it.

5.  On 16 March 2010, the applicant was counseled for missing morning formation.  She was informed that she was being recommended for NJP.  The applicant agreed with the contents of the counseling statement and signed and dated it.

6.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG), dated 16 March 2010, indicates that a FLAG was initiated based on an adverse action.

7.  On 23 March 2010, the applicant accepted NJP for failing to report for morning formation.  The punishment consisted of a forfeiture of $480.00 pay per month for 1 month and 14 days restriction (suspended), and 14 days extra duty.  The commander directed this NJP be filed in the restricted section of the applicant's official military personnel file.  The applicant did not appeal the punishment.

8.  DA Form 199 (Physical Evaluation Board (PEB) Proceedings, state:

	a.  The PEB convened on 8 June 2010 to consider the applicant's medical condition.

	b.  The PEB recommended 20 percent disability rating for chronic right hip pain and a 10 percent disability rating for chronic low back pain.

	c.  The PEB found that the applicant suffered from an anxiety disorder present since age 16 (existed prior to service).  Her symptoms fluctuated over the years provoked by a variety of stressors (financial and interpersonal relations).  The symptoms have been stabilized with psychotropic agents and psychotherapy.  This condition was found to be unfitting because she could not carry or fire a weapon.

	d.  The PEB found the applicant to be physically unfit with a  combined disability rating of 30 percent.

	e.  The applicant concurred with the PEB findings and recommendation and waived a formal hearing.

	f.  The PEB was approved on 14 June 2010.

9.  On 21 June 2010, the applicant made an unsworn statement that was not witnessed; wherein, she:

	a.  requested that all action against her under the Uniform Code of Military Justice be put on hold until an investigation into the allegations against her could be completed;

	b.  recorded details, in chronological order of abuse, harassment, lack of support and absence of leadership that she suffered during her assignment at Fort Lewis;

	c.  listed the names and ranks of individuals who had witnessed these events, or who had perpetuated the offenses; and

	d.  stated she had sought assistance through the Legal Defense Services at Fort Lewis.

10.  On 28 June 2010, the applicant accepted NJP for being drunk on duty as a team leader.  She was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting NJP.  All other appropriate due process was extended to the applicant.  The punishment included reduction to the rank of specialist, pay grade E-4, forfeiture of $1.146.00 pay per month for 
2 months (suspended), and 45 days extra duty (suspended).  The applicant's appeal of the punishment was denied.

11.  On 1 July 2010, an Army specialist made a sworn statement that was witnessed by the applicant and another person.  The document states:

	a.  that the specialist was working as the applicant's "supply boy" because they needed someone who lived in the barracks with accessibility to the supply office when the applicant was unavailable;

	b.  that when the applicant would tell the specialist to do something, his supervisor, a staff sergeant, would tell him not to do it because it was the applicant's job;

	c.  that on one occasion, his supervisor tried to humiliate the applicant and did not even consider or listen to her;

	d.  that the atmosphere in the company was very relaxed;

	e.  that it was very common for 50 to 70 percent of the company to not report for morning formation, but the only one ever reported was the applicant;

	f.  that the chain of command generally displayed no concern for the lower enlisted personnel;

	g.  that the specialist was aware of the applicant's stress in the workplace; and

	h.  that he never knew of any leave she had ever taken.

12.  On 17 August 2010, the Chief, Operations Division, U.S. Army Physical Disability Agency (USAPDA), requested a grade determination from the Army Review Boards Agency.  The request stated:

	a.  the applicant's current pay grade was E-4;

	b.  the applicant's highest grade held had been E-5; and

	c.  the applicant was reduced on 28 June 2010 as a result of NJP.


13.  On 19 August 2010, the Army Grade Determination Review Board convened to consider the applicant's case.

	a.  After a thorough review of the applicant's OMPF, PEB, and two NJP's dated 25 March and 28 June 2010, the AGDRB determined that the highest pay grade in which she served satisfactorily for the purpose of computing her disability retirement was E-4.

	b.  The AGDRB advised that the applicant should be informed of this decision and that she could apply to the Army Board for Correction of Military Records (ABCMR) if she felt the decision was in error or unjust.

14.  On 18 September 2010, the applicant was retired due to physical disability, in the rank of specialist, pay grade E-4.  She had completed 6 years, 7 months, and 27 days of creditable active duty service.

15.  The NCOERs, provided by the applicant, report her performance of duty as follows:

	a.  During 1 April 2007 to 30 June 2008:  The applicant received a Yes" for each Army value/attribute/skill/actions in Part IVa.  She was rated as successful in Part IVb, c, d, e, and f.  She was rated as fully capable and received a "2" block for overall performance and potential.

	b.  During 1 July 2007 to 30 June 2008:  The applicant received a Yes" for each Army value/attribute/skill/actions in Part IVa.  She was rated as excellent in Part IVb and d; and as successful in Part IVc, e, and f.  She was rated as among the best and received a "1" block for overall performance and potential.

	c.  During 1 July 2008 to 17 April 2009:  The applicant received a Yes" for each Army value/attribute/skill/actions in Part IVa.  She was rated as excellent in Part IVb and f; and as successful in Part IVc,d and e.  She was rated as among the best and received a "1" block for overall performance and potential.

	d.  During 18 April 2009 to 17 April 2010:  The applicant received a Yes" for each Army value/attribute/skill/actions in Part IVa.  She was rated as successful in Part IVb, c, d, e, and f.  She was rated as fully capable and received a "2" block for overall performance and potential.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military records should be corrected to show that she was retired in the rank of sergeant, pay grade E-5, due to physical disability.  She further contends that her rank should be restored.

2.  The evidence of record clearly shows that the applicant was reduced to specialist, pay grade E-4 after her PEB had been approved.  Subsequently, the USAPDA requested a grade determination by the Army Grade Determination Review Board (AGDRB).  The AGDRB reviewed the applicant's records, to include the NJP that reduced her to specialist, pay grade E-4, and determined that the highest pay grade she held satisfactorily was E-4.

3.  The applicant claims that her command committed a variety of offenses resulting in a hostile work environment resulting in her being sexually harassed and being diagnosed with PTSD.  She further contends that she worked her entire career to become an NCO and had a long history of superior performance.  Accordingly, she states that taking her rank away was disproportionate to the offense.

4.  The statements provided by the applicant and the specialist that worked for her, appear to have been written with the intent to have the command initiate an investigation into her allegations.  However, no such documentation has been provided showing that an investigation was ever conducted, or that any of her allegations were founded.

5.  The evidence shows the applicant was afforded all required due process for both the NJP and the AGDRB.

6.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary, we presume that all actions taken by the military were proper.  There is nothing in the available records or in the evidence submitted to overcome this presumption.

7.  The available evidence is insufficient to overturn the NJP or the determination of the AGDRB that the applicant's service as sergeant, pay grade E-5 was unsatisfactory.

8.  In view of the above, the applicant’s request should be denied.



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)                                         AR20100023489





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ABCMR Record of Proceedings (cont)                                         AR20100023489



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