IN THE CASE OF:	
 
		BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110003271 


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 her rank be changed from private first class (PFC)/E-3 to sergeant (SGT)/E-5.

2.  The applicant states:

	a.  she was promoted to SGT on 1 January 2010 and she was counseled by her supervisor on 8 January 2010, at which time she was informed she would be flagged and should not have been promoted;

	b.  she filed an inspector general (IG) inquiry regarding her promotion which resulted in her favor; however, her chain of command refused to restore her rank to SGT because the IG's response was not authored in the form of a memorandum;

	c.  on 23 March 2010, she was found guilty of an assault upon a Soldier whom she never met;

	d.  the nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) she received was not in accordance with the governing regulation and the findings were not based on evidence beyond a reasonable doubt; and

	e.  the judge advocate considering her appellate matters also advised her battalion commander who was processing a chapter for the known suspect's spouse, implying conflict of interest.

3.  The applicant provides:

* SGT promotion order
* E-mail communication (7 pages)
* Article 15 appeal
* DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ)
* two Article 15 Worksheets
* six DA Forms 2823 (Sworn Statement)
* Enlisted Record Brief (ERB)
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG))
* Electronic Military Police Report
* Facebook Internet Web Page
* Memorandum for Record (MFR)
* Memorandum, dated 12 August 2009
* Military Personnel Message Number 10-010, dated 8 January 2010
* Character Reference Statement

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the Regular Army on 20 February 2008 in the rank/grade of specialist (SPC)/E-4.  She was trained in and awarded military occupational specialty 27D (Paralegal Specialist).

2.  Orders 355-06, issued by Headquarters, Special Troops Battalion (STB) - Korea, dated 21 December 2009, announced her promotion to SGT with an effective date and date of rank of 1 January 2010.  It also included the statement "Promotion is not valid and will be revoked if she is not in a promotable status on the effective date of the promotion."

3.  A DA Form 268, dated 8 January 2010, shows a suspension of favorable personnel actions was initiated against the applicant for adverse actions with an effective date of 29 December 2009.  It shows she held the rank of "SGT."

4.  The applicant's military record does not contain a revocation order to show her SGT promotion order was revoked.

5.  On 23 March 2010, the applicant was notified that her company commander was considering whether she should be punished under Article 15, UCMJ, for assaulting a junior female Soldier by striking her in the face and body with her fists and kicking her head, face, shoulders, buttocks, and legs with her feet on
27 December 2009.

6.  On 23 March 2010, the applicant elected not to demand a trial by court-martial and chose for the matter to be handled by her battalion commander at a closed hearing and to present matters in defense, mitigation, and/or extenuation.

7.  Having considered all matters presented in the closed hearing, the commander found her guilty of the charge and specification against her.  The punishment imposed consisted of a reduction to PFC and 14 days of restriction and extra duty.

8.  On 28 March 2010, the applicant elected to appeal the punishment by submitting additional matters and signed a DA Form 2627 confirming this election.

9.  On 30 March 2010, the applicant's appeal was reviewed by the Staff Judge Advocate who opined that the proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate for the offense committed.

10.  On 30 March 2010, the Commander, STB - Korea, the appellate authority, denied the applicant's appeal.  The applicant acknowledged the action taken on her appeal on that same day.

11.  The applicant provides an email from a U.S. Army Human Resources Command (USAHRC), Enlisted Promotions Branch, Military Personnel Technician, dated 9 April 2010.  This official provides:

	a.  the applicant was promoted on 1 January 2010;

	b.  her command was not aware of her offenses committed in December 2009 until February 2010;

	c.  the applicant was not flagged during the time of her promotion; therefore, she should have been promoted to SGT;

	d.  her command should have flagged her in February 2010 and once aware of her offenses, administered UCMJ in the rank of SGT.

12.  The applicant provides six sworn statements from Soldiers who each indicate they were at the UN Club on 27 December 2010 and witnessed, entirely or in part, the attack on PFC M----- being hit, pushed, and kicked by a black or light skinned female approximately 5 to 6 feet tall.  Each of the Soldiers also indicated they did not know the offender in this assault.

13.  Army Regulation 600-8-2 (Flags) prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function.  Paragraph 2-1 provides the rules for initiating the flag and states the effective date of the flag is the date of the incident or the date the commander (or general officer staff head) directs the flagging action, whichever is earlier.

14.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and part V, Manual for Courts-Martial.

	a.  Paragraph 3-18 states the imposing commander will ensure the Soldier is notified of the commander's intention to dispose of a matter under the provisions of Article 15, UCMJ.  The Soldier will be informed of his/her right to consult with counsel and the location of counsel.  Before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.

	b.  Paragraph 3-28 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states the basis for any set-aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means there is an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her rank should be changed from PFC to SGT.

2.  By regulation, the effective date of the flagging action will be the date of the offense or the date the commander directs the flagging action, whichever is sooner.  The applicant was accused of an assault against another Soldier on
27 December 2009 and a flagging action was initiated against her on 8 January 2010, with an effective date of 29 December 2009.  Had she been promoted prior to 27 December 2009, before the date of the offense, her promotion would have remained valid.  
3.  Additionally, it is noted the USAHRC official's statement erroneously indicates the command was not aware of the applicant's involvement in the assault until February 2010; however, the statement is incorrect because the command notified the applicant of the impending flag on 8 January 2010.  The applicant was not in a promotable status on the effective date of her promotion to SGT.

4.  The evidence of record further confirms the applicant was found guilty of her charged offense as evidenced in the UCMJ action she received that resulted in her reduction to PFC.

5.  In response to the applicant's claim her Article 15 proceedings were not in accordance with Army Regulation 27-10, the evidence of record confirms her NJP processing was accomplished in accordance with the applicable law and regulation and that the imposing commander determined beyond a reasonable doubt that the applicant was guilty of the charged offenses.  Although there were differing accounts from witnesses concerning whether the applicant assaulted the victim, the imposing commander weighed the credibility of the witnesses and determined the guilt of the applicant.  Additionally, the applicant has failed to present independent evidence that a conflict of interest existed for the judge advocate who reviewed her appeal and advised the appellate authority.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110003271



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ABCMR Record of Proceedings (cont)                                         AR20110003271



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